Pepperdine Law - Vol. 30, Iss. 2 (Fall 2011)

FALL 2011

Special Faculty Edition Discover the most recent scholarship from Pepperdine law professors.

for Dispute Resolution | Translating Theory into Practice Since 1986 |

Ranked No. 1 by U.S. News & World Report for Seven Consecutive Years

View the full calendar of anniversary events: straus.pepperdine.edu

Vol. 30, No. 2

Fall 2011

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Pepperdine Law, the magazine of Pepperdine University School of Law, is published by Pepperdine University.

School of L aw A dministration

Carol A. Chase – Associate dean, academics

special Faculty edition 4 When Erie Goes International

Herbert E. Cihak – associate dean, library and information Services

Donald Earl Childress III

Deanell Reece Tacha – Duane and Kelly Roberts Dean L. Timothy Perrin – Vice Dean

James A. Gash (JD ’93) – associate dean, student life Maureen Arellano Weston – associate dean, research

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NCAA Sanctions: Assigning Blame Where It Belongs

Aymara Zielina – assistant dean, career development

Maureen Arellano Weston

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Limiting Article III Standing to “Accidental” Plaintiffs: Lessons from Environmental and Animal Law Cases

Pepperdine L aw staff Megan Huard – editor

Robert J. Pushaw

Keith Lungwitz – art director

14 The Emerging Oversimplifications of the Government Speech Doctrine:

Vincent Way – copy editor Ron Hall (’79) – photographer

From Substantive Content to a “Jurisprudence of Labels”

Jill McWilliams – production manager Jenny Rough (JD ’99), Gareen Darakjian, Sarah Fisher – contributors Kimberly Robison (’10) – Web developer

The Office of Public A ffairs Rick Gibson (MBA ’09, PKE 121) – Vice President for Public Affairs and Church Relations Matt Midura (’97, MA ’05) – Assistant Vice President for Integrated marketing communications Megan Huard – director of content development/ Managing Editor Brett Sizemore – director of creative services Ed Wheeler (’97, MA ’99) – director of web and multimedia

Barry P. McDonald

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f cc regulation Versus Antitrust: How Net Neutrality Is Defining the Boundaries

Babette Boliek

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R eligious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders

Michael A. Helfand

24 The Third Arbitration Trilogy: Stolt-Nielsen, Rent-a-Center, Concepcion, and the Future of American Arbitration Thomas J. Stipanowich

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Faculty Publications and Speaking Engagements

Pepperdine University School of Law 24255 Pacific Coast Highway Malibu, California 90263

The latest in books, articles, presentations, and more from full-time faculty of Pepperdine Law. Printed alphabetically throughout this publication

p: 310.506.4611

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e-mail: megan.huard@pepperdine.edu

Also in this issue:

School of L aw Offices Admissions

310.506.4631

Advancement and Alumni Relations

310.506.4492

Career Development 310.506.4634 Global Justice Program

310.506.4734

International Programs

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Straus Institute

for Dispute Resolution

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Geoffrey H. Palmer Center for Entrepreneurship and the Law

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2 Message from the Dean 3 News 16 Legal Research and Writing Program 17 Clinical Education Program 30 Distinguished Visiting Professors 32 Recent and Upcoming Events

Herbert and Elinor Nootbaar Institute

on Law, Religion, and Ethics 310.506.7635 Clinical Programs

310.506.7449

LS1108020

Read the magazine online at lawmagazine.pepperdine.edu.

Message from the Dean The mark of a great law school is that the teaching commitment of its faculty is informed by robust and creative scholarly research and writings.

Teaching becomes a stagnant and even outdated endeavor if not constantly revitalized by the thoughtful consideration of new frontiers of knowledge, analysis, and inquiry that is the work of a great scholar. In the law school setting, scholarship takes many forms because, in part, the goal of scholarly work is to assist legal professionals. It is also to move the body of legal literature forward by informing cases under consideration by judges and issues being analyzed by lawyers, as well as expanding the horizons of public policy and academic inquiry.

As a former federal judge, immersed in cases and opinions for 25 years, I can personally attest to the intellectual exhilaration of finding a law review or journal article that directly assists in the analysis of a case under advisement. Although a scholarly article rarely provides the on-point answer in a particular case or controversy, the precision with which legal scholars can predict and analyze the most current issues before the courts, and challenge lawyers and public policy makers, is one of the major contributions to the body of legal knowledge. Further, legal scholarship may reach beyond the current issues and begin to push the frontiers of the law to new and stimulating possibilities for the future. Other types of scholarship examine the history of the law to try to inform its future directions. Finally, other forms of legal scholarship are very pragmatic in their purposes: assisting lawyers, judges, mediators, and even litigants in the everyday understanding of the law at work in practice, in courtrooms, and in the public square. All these forms of legal scholarship are valuable tools for the profession, and I am proud and gratified to present this brief compendium of the great, recent work of the Pepperdine University School of Law scholars.

Members of the faculty are fully engaged in all of the valuable forms of legal scholarship. They are thereby enriching their call to teaching and the classroom experiences of our students. In addition, because of Pepperdine’s commitment to be a law school dedicated to Christian values, many of our faculty are exploring in thoughtful ways the most difficult questions of our time at the intersection of religion, values, service to humanity, and the law as it affects these important human impulses. I hope that all who read this list of achievements will be energized and inspired, as I continually am, by the work of these remarkable scholars. I am honored to work among them.

Deanell Tacha Duane and Kelly Roberts Dean and Professor of Law

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news School of Law Welcomes Three New Faculty Members This year the School of Law added three new faculty members—Khrista McCarden, Derek Muller, and Amy Levin—to its dynamic roster of professors.

McCarden, associate professor of law, arrived at Pepperdine this spring after practicing international tax law at Morgan Lewis in London. Following her graduation from Harvard Law School, magna cum laude, she clerked for Judge Barrington D. Parker of the United States Court of Appeals for the Second Circuit. She has published articles in both the United States and in the United Kingdom and lectured on U.S./U.K. dual-qualified charitable structures (learn more on page 19). She will teach Federal Income Taxation, Federal Income Taxation of Business Entities, and International Tax.

Pepperdine School of Law establishes New Endowed Chair School of Law alumnus Laure Sudreau-Rippe (’97) provided Pepperdine with a generous gift to establish the Laure Sudreau-Rippe Endowed Chair at the School of Law, the first chair to be endowed by a female alumnus.

Muller graduated from the University of Notre Dame School of Law, summa cum laude, and then clerked for Judge Raymond W. Gruender on the United States Court of Appeals for the Eighth Circuit. As an associate at Kirkland & Ellis in Chicago, Muller practiced litigation, including white-collar criminal defense and commercial and corporate disputes. His teaching background includes serving as a visiting assistant professor and Shughart Fellow at Pennsylvania State University’s Dickinson School of Law (learn more on page 26).

He will teach Civil Procedure and Complex Litigation.

“This chair will make possible very important enhancements to the work being done by the Palmer Center for Entrepreneurship and the Law,” notes School of Law dean Deanell Reece Tacha. “It will enable students to be involved in the essential links that must be forged in training lawyers and businesspeople to work together in their mutual efforts to strengthen the economic fiber of the nation and the world.”

Levin,visiting assistant professor of law, is a graduate of the UCLA School of Law. Before joining the Pepperdine faculty this fall, Levin was an associate at Arnold & Porter LLP, specializing in commercial and trademark litigation. Levin clerked for Judge Richard A. Paez of the United States Court of Appeals for the Ninth Circuit following her graduation from law school. She will teach Legal Research and Writing.

Professor Janet Kerr, the first occupant of the endowed chair, was selected by Sudreau-Rippe for her dedication to women’s microfinance opportunities, and because throughout her career she has championed the cause of women in law.

Kerr, who began her distinguished career on the School of Law faculty in 1983, serves as the executive director of the Geoffrey H. Palmer Center for Entrepreneurship and the Law. During her tenure at the law school, she has twice been recognized as a Luckman Distinguished Teaching Fellow, has served as associate dean for academics, and has written widely on securities regulation. She is an expert on corporate governance issues and sits on the boards of several publiclyheld corporations.

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When Erie Goes International

By Donald Earl Childress III 105 Northwestern University Law Review (forthcoming 2011)

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nder the conventional understanding, the Erie doctrine not only requires federal courts to apply the law of the state in which the court sits, but also to apply that state’s conflictof-laws rules, even when those rules direct the court to apply the law of a foreign country. In this article, Childress argues that courts should question this mechanistic application of the Erie doctrine to transnational cases. This topic is of increasing importance today because as more transnational cases are filed in U.S. courts, judges must revisit and update domestic doctrines to meet the challenges presented when they hear such cases.

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ertain cases live long in the legal imagination, even though some lawyers and law students would just as well forget about them. One prime example of this is the Supreme Court’s decision in Erie Railroad Company v. Tompkins, which has been described as “one of the modern cornerstones of our federalism, expressing policies that profoundly touch the allocation of judicial power between the state and federal system” and as “a star of the first magnitude in the legal universe.” As almost every first-year law student comes to know, the so-called “Erie doctrine” generally requires federal courts to apply the law of the forum state in which the court sits, unless the matter before the court is governed by the Constitution, a federal statute, a Federal Rule of Civil Procedure, or some other federal rule. Since the Erie decision, the Supreme Court has sought to settle the doctrine’s puzzles in a series of cases . . . involving the interplay between federal and state laws and procedural rules.

One such Erie puzzle involves the choice of applicable substantive law in federal courts when a legal dispute crosses state borders. What state’s law should apply when the laws of more than one state are potentially applicable to a case? The Supreme Court provided an answer to that question in Klaxon Company v. Stentor Electric Manufacturing Company, when it held that a federal court must apply not only state substantive

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of law.” [W]hile the Constitution, the Rules of Decision Act, the Rules Enabling Act, and various policy considerations may require the application of the laws of the several states, these same sources should not be read as similarly and automatically requiring the application of the law of foreign states because the application of foreign law, unlike sister state law, is entirely voluntary. . . .

Second, to the extent there is increased private transnational litigation in United States courts, these Erie questions will arise with more frequency. To the extent they arise, courts should question the mechanistic application of a doctrine announced in the 1930s (and updated to conflict of laws in the 1940s and 1970s) to the realities of today, especially in light of more recent Supreme Court cases concerning constitutional constraints on choice of law.

Third . . . the animating ethos of the Erie doctrine is perhaps thwarted by its application in private international cases.

If it is correct that the Erie doctrine is about separation of powers and federalism, it does little to effectuate these goals by requiring federal courts to apply uncritically foreign law.

Furthermore, recognizing that in unclear areas the Erie choice requires consideration of the “twin aims” of “discouragement of forum shopping and avoidance of inequitable administration of the laws,” these aims must be balanced against the strength of having a consistent federal policy. [T]his article shows through empirical analysis that forum shopping might be encouraged by the Erie doctrine’s application to cases involving foreign law. The discussion of forum shopping uncovers a previously unrecognized connection in the scholarly literature: internationalizing the Erie doctrine may in part explain the increased use of the forum non conveniens doctrine by federal district courts.

law but it also must apply state conflict-of-laws rules. . . . In the Supreme Court’s view, to do otherwise “would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side” and “would do violence to the principles of uniformity within a state, upon which the Erie decision is based.” This holding, while well settled, is not without vigorous criticism.

Nearly all of the cases developing the Erie doctrine have arisen in the federal/state (whether federal or state laws or procedural rules control) or state/state (whether the laws of State A or B control) context. While the Erie doctrine may make sense in the intra-state context given that as a constitutional matter states and their citizens must be treated equally, another Erie question arises in the international context—namely, must a federal court apply the law of a foreign country when directed by state conflict-of-laws rules? What happens when the Erie doctrine goes international?

The Supreme Court resolved this “subpuzzle” within the larger Erie/Klaxon puzzle in a short per curiam opinion in the case of Day & Zimmermann, Incorporated v. Challoner, which held that federal courts must apply state conflict-of-laws rules, even when those rules direct the court to apply the substantive law of a foreign country.

The purpose of this article is to unsettle the quiescent waters of this Erie/Klaxon subpuzzle in private transnational cases. It should be asked up front: If the law is so settled, why unsettle it and perhaps further befuddle generations of lawyers and law students whose only hope has been to find any semblance of consistency in the dictates of the Erie doctrine? Three preliminary answers can be given.

First, it is a mistake to treat international and domestic conflict-of-laws cases in the same way because “international choice of law requires more flexibility than domestic choice

Donald Earl Childress III (“Trey”), associate professor of law, teaches and works extensively on the topic of international civil litigation, comparative law, and conflicts of law. Among other activities, he is the American coeditor of the blog Conflictoflaws.net, the leading private international law portal on the Internet. His scholarship has appeared in the Duke Law Journal, UC Davis Law Review, and Georgetown Law Review, in addition to this article which will appear in the Northwestern University Law Review.

Reprinted with permission of the Northwestern University Law Review Footnotes have been omitted. The full excerpt is available at lawmagazine.pepperdine.edu.

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NCAA Sanctions: Assigning Blame Where It Belongs

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veryone loves a winning team. Success in a major athletic program, particularly an NCAA Division I national championship, translates into millions of dollars and immense pride for the players, coaches, alumni, students, and the university. A major intercollegiate athletics program can also have a positive impact on the academic mission of a university. Revenues from broadcast rights and merchandise sales, admissions applications, and fundraising for the entire university are enhanced. A winning program can also catapult the recruiting process and be a determinative factor in a soughtafter high school student-athlete’s choice of university.

Along with the tangible benefits and lure of winning is the intense pressure to win. . . . The love of the sport, as well as the prospects for a collegiate scholarship and a potentially lucrative professional sports career, motivate young athletes to devote years to intense training and competition. Many families spend thousands of dollars to provide instruction and competitive development opportunities to their children. Coaches are certainly invested as well, with their job security, status, and compensation packages largely dependent upon producing winning programs. For better or worse, scouts and agents are on watch to identify and attract star athletes as future professional sport clients. Likewise, the professional sport leagues are eager to sign young talent to their rosters. . . .

The relatively few student-athletes talented, able, and fortunate enough to compete in major intercollegiate sports are highly recruited. The courtship includes promises of scholarships, extensive playing opportunities, and prospects for a professional athletic career. . . .

The NCAA . . . formed for the purpose of administering intercollegiate athletics . . . [is to] ensure that the competitive athletics programs of member institutions are a vital part of the education process, that student-athletes are an “integral part of the student body,” and that college sports retain their hallmark— amateurism. The NCAA has promulgated and enforced rules that govern nearly every aspect of competition, and the studentathlete’s experience, with an aim to ensuring competitive fairness and protecting the interests of student-athletes. In the practical reality of the “arms race” in major collegiate sports, however, these principles are often violated. Some rule violations are minor . . . other violations are egregious, such as payments or a range of impermissible extra benefits provided to

By Maureen Arellano Weston 52 Boston College Law Review 551 (2011)

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n this article, Weston asserts that NCAA sanction powers can be too narrow in that they extend only to member institutions, not to individual coaches, players, agents, boosters, or other involved individuals, but also can be too broad in that they negatively impact current student-athletes, who are restricted in their ability to transfer without penalty.

Weston proposes new rules for holding coaches and institutions financially accountable for infractions, while protecting uninvolved student-athletes. This topic is of continuing relevance as the scandals involving alleged improper benefits to student-athletes intensify. Her article discusses the intended and unintended impacts resulting from the sanction power of the National Collegiate Athletic Association (NCAA).

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players or their families, academic fraud, and recruiting abuses by coaches or agents. . . .

In this competitive environment, some coaches, players, agents, boosters, institutional members, and even parents succumb to the temptation to cheat. A recent case . . . [involved] . . . allegations of cheating in football and men’s basketball by two of the most high-profile student-athletes ever to attend [the university implicated]. [One athlete] was found to have accepted thousands of dollars in cash payments, airline tickets for his parents to attend away football games, a free limousine service, expensive clothing, a vehicle, free lodging in Las Vegas, and a rent-free home and cash for his parents. Tragically, [the student’s] mother and stepfather were at the center of the cheating scandal [in accepting payments in exchange for promises to deliver their son to agents]. . . .

[The university’s] basketball program [involved] infractions [of recruiting and benefits] . . . .

Finding [the university] a “repeat violator,” the NCAA imposed stringent sanctions, including a two-year ban on postseason competition for seasons 2010 and 2011, vacatur of all wins in which these students had competed (since December 2004), and a reduction in the number of football scholarships for 2011–2014. . . .

NCAA rule violations require accountability and consequences.

But who really pays for the sins of a few former student-athletes, sleazy agents, or other unscrupulous individuals who associate themselves with an athletic program? Innocent teammates . . . now have their title vacated. Current student-athletes and incoming recruits . . . found themselves on a team much different from what they envisioned, and are not allowed to experience postseason bowl play. . . .

Life is not always fair, but cheating never is. Consequences are necessary . . . but do NCAA sanctions adequately punish the actual wrongdoers, or do they disproportionately impact current student-athletes? . . . Arguably, an entire program is complicit by virtue of association with rule-breakers where there is knowing disregard by institutional officials. But NCAA sanctions impact entire programs, innocent teammates, new recruits, even conference members, and yet fail to penalize many of the actual wrongdoers.

Maureen A. Weston, associate dean for research and professor of law, is the coauthor of casebooks on arbitration and on sports law and has written numerous articles and spoken at academic conferences in the fields of mediation, arbitration, and sports law. She has written articles published by law reviews at Minnesota, William and Mary, Indiana, Tennessee, and the Harvard Negotiation Law Journal, among many others.

Reprinted with permission of Boston College Law Review.

Footnotes have been omitted. The full excerpt is available at lawmagazine.pepperdine.edu.

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Faculty Publications and Speaking Engagements Roger P. Alford

Babette E. Boliek

Professor of Law and Director, Glazer Institute for Jewish Studies

Associate Professor of Law and Acting Director, Palmer Center for Entrepreneurship and the Law

LLM Edinburgh University, 1992, magna cum laude JD New York University, 1991, with honors MDiv Southern Seminary, 1988 BA Baylor University, 1985, with honors

Book The Future of Investment Arbitration (with Catherine Rogers) (Oxford Univ.

Press 2009).

PhD University of California, Davis, 2007 JD Columbia University, 1998 BA California State University, Chico, 1987

Articles FCC Regulation Versus Antitrust: How Net Neutrality Is Defining the Boundaries, B.C. L. Rev. (forthcoming).

Wireless Net Neutrality Regulation and the Problem with Pricing: An Empirical, Cautionary Tale, 16 Mich. Telecomm. Tech. L. Rev. 1 (2009).

Book Chapter Moral Reasoning in International Law, in The Role of Ethics in International Law (with James Fallows Tierney) (forthcoming).

Presentations “The Law of Disaster,” Southeastern Association of Law Schools Conference (July 2011).

Articles Apportioning Responsibility Among Joint Tortfeasors for International Law Violations, 38 Pepp. L. Rev. 233 (2011).

“Net Neutrality and International Law,” Albany Law School (Apr. 2011).

The Nobel Effect, 103 Am. Soc’y Int’l L. Proc. 467 (2009).

Thomas G. Bost Professor of Law

Robert Anderson IV

JD Vanderbilt University School of Law, 1967, Founder’s Medalist BS Abilene Christian University, 1964, summa cum laude

Associate Professor of Law PhD Stanford University, 2008 JD New York University, 2000 BA Claremont-McKenna College, 1997

News

Articles L aw, Fact, and Discretion in the Federal Courts: An Empirical Study, 2012 Utah L. Rev. (forthcoming).

Distinguishing Judges: An Empirical Ranking of Judicial Quality in the United States Court of Appeals, 76 Mo. L. Rev. 315 (2010).

Institutions and Equilibrium in the United States Supreme Court (with Alexander M. Tahk), 104 Am. Pol. Sci. Rev. 811 (2007).

Served with distinction as interim dean of the School of Law during the 2010-11 academic year.

Book Chapter Reason, Freedom and Apocalyptic Vision: Churches of Christ and the Practice and Teaching of Law, in Faith and Law: How Religious Traditions from Calvinism to Islam View American Law (Robert F. Cochran, Jr., ed., NYU Press 2008).

Article Corporate Lawyers After the Big Quake: The Conceptual Fault Line in the Professional Duty of Confidentiality, 19 Geo. J. Legal Ethics 1089 (2006).

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H. Mitchell Caldwell

Donald Earl Childress III

Professor of Law

Associate Professor of Law

JD Pepperdine University, 1976 BA California State University Long Beach, 1972, cum laude

Books

LLM Duke University, 2004, magna cum laude JD Duke University, 2004, magna cum laude MA Oxford Brookes University, 1999, with distinction BA University of Virginia, 1997

Criminal Mock Trials (Vandeplas forthcoming 2012) (with Terry Adamson).

Book The Role of Ethics in International Law (Donald Earl Childress III, ed. Cambridge Univ. Press, forthcoming).

Criminal Pretrial Advocacy (Vandeplas forthcoming 2012) (with Terry Adamson).

Articles

The Art and Science of Trial Advocacy (with L. Timothy Perrin & Carol A. Chase) (Lexis 2d ed. 2011).

The Alien Tort Statute, Federalism, and the Next Wave of International Law Litigation, 100 Geo. L.J. (forthcoming).

Case Files for Basic Trial Advocacy (Lexis 2009) (with Carol A. Chase, Naomi Harlan Goodno, and L. Timothy Perrin).

When Erie Goes International, 105 Northwestern U. L. Rev. (forthcoming).

Articles

Comity as Conflict: Resituating International Comity as Conflict of Laws, 44 U.C. Davis L. Rev. 11 (2010).

Lessons from the Masters, the Seven Pillars of Trial Advocacy, Am. J. Trial Adv. (forthcoming).

Kafka in the Docket: Coercive Plea Bargaining, The Unrecognized Scourge of the Justice System, 61 Cath. U. L. Rev. 24 (2011).

Presentations “Private International Law in the Context of Globalization,” The Chinese Society of Private International Law, China University of Political Science and Law, Beijing, China (Oct. 2011).

“Personal Jurisdiction as Choice of Law,” Southeastern Association of Law Schools Annual Meeting, Hilton Head, South Carolina (July 2011).

Carol A. Chase Associate Dean, Academics, and Professor of Law

“Transnational Remedies in Private International Law Cases,” Seventh Remedies Discussion Forum, University of Aix-Marseille III, Aix-enProvence, France (June 2011).

JD University of California, Los Angeles, 1978 BA University of California, Los Angeles, 1975, summa cum laude

Herbert E. Cihak

Books

Associate Dean, Library and Information Services and Professor of Law

The Art and Science of Trial Advocacy (Lexis 2d ed.

2011) (with L. Timothy Perrin and H. Mitchell Caldwell).

Case Files for Basic Trial Advocacy (Lexis 2009) (with H. Mitchell Caldwell, Naomi Harlan Goodno, and L. Timothy Perrin).

MLS Brigham Young University, 1984 JD University of Nebraska, 1983 MA Brigham Young University, 1975 BA Brigham Young University, 1972

Article

Book Chapters

Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions (with H. Mitchell Caldwell & Christine Chambers Goodman), 82 Temple L. Rev. 997 (2009).

of

Son of Sam; Son of Sam Laws, in The Encyclopedia American Law and Criminal Justice (with Jessica Drewitz) (forthcoming).

Direct Democracy, in Political Encyclopedia of U.S. States and Regions (Donald P. Haider-Markel & Michael A. Card eds., CQ Press 2009).

Presentation “Library Leadership,” Chinese and American Forum on Legal Information and Law Libraries, Philadelphia, Pennsylvania (July 2011).

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Faculty Publications and Speaking Engagements Robert F. Cochran, Jr.

Article

Director, Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics, and Louis D. Brandeis Professor of Law

Client Expectations in Investor-State Cases, Transnat’l Disp. Mgmt. (forthcoming).

JD University of Virginia, 1976 BA Carson-Newman College, 1973, magna cum laude

Presentation “Convention on the International Sale of Goods,” Southwestern Institute on International and Comparative Law, Annual Symposium on Global Markets (June 14-15, 2011).

Books Louis D. Brandeis’ MIT Lectures on Law (Carolina Academic Press, forthcoming 2011).

Richard L. Cupp, Jr.

Lawyers, Clients, and Moral Responsibility (with Thomas L. Shaffer) (West 2d ed. 2009).

JD University of California, Davis, 1987 BA Pepperdine University, 1983, magna cum laude

John W. Wade Professor of Law

Articles

Book Chapter

Collaborative Practice’s Radical Possibilities for the Legal Profession: “[Two Lawyers and Two Clients] for the Situation,” 11 Pepp. Disp. Resol. L.J. 229 (2011).

Tort Reform or Tort Restriction: Rhetoric as Scorekeeper, in Materials on Tort Reform (Andrew Popper ed., Thomson/West 2010).

Introduction: Blessed are the Compromisers?, 38 Pepp. L. Rev. 813 (2011).

Legal Ethics and Collaborative Practice Ethics, 38 Hofstra L. Rev. 537 (2010).

Presentation “The Christian Responsibility for Social Justice: Theory and Practice,” The Fifth International Conference on Christian Higher Education and Scholarship, Baekseok University, Korea (June 25, 2011).

Jack J. Coe, Jr. Professor of Law PhD London School of Economics and Political Science, 1999 LLM University Exeter, Exeter, England, 1982 JD Loyola Marymount School of Law, 1979 BA University of California, Los Angeles, 1975, with distinction

Articles In Praise of Moral Judgment: The Restatement (Third) of Torts and Flagrant “Bad Guy” Trespassers, 1 Wake Forest L. Rev. Online 37 (2011).

International Tobacco Litigation’s Evolution as a United States Torts Law Export: To Canada and Beyond?, 38 Pepp. L. Rev. 283 (2011).

Presentation Member of Planning Committee and Participant, Institute of Medicine’s Forum on Neuroscience and the National Academy of Sciences Committee on Science, Technology and Law, Meeting re the future of animal research regulation in the United States and Europe, London (July 2011).

James Allan Gash Associate Dean of Student Life and Associate Professor of Law

News Professor Coe serves as an associate reporter for the American Law Institute’s Restatement of the Law (Third), International Commercial Arbitration.

JD Pepperdine University, 1993, summa cum laude BA Abilene Christian University, 1989, summa cum laude

Book Chapters

Book Chapter

Chapter 4, in Restatement of the Law (Third) International Commercial Arbitration (American Law Institute, forthcoming).

Concurrent Med-Arb—Some Further Reflections on a Work in Progress, in Investor-State Disputes: Prevention and Alternatives to Arbitration II 43 (S. Franck & A. Joubin–Bret, eds., 2011).

Understanding and Solving the Multiple Punishments Problem, in Punitive Damages: Is Europe Missing Out? (Intersentia forthcoming 2011)

Article The End of an Era: The Supreme Court (Finally) Butts Out of Punitive Damages for Good, 63 Fla. L. Rev. 525 (2011).

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Christine Chambers Goodman

Colleen P. Graffy Director, Global Programs, Academic Director, London Program, and Associate Professor of Law

Professor of Law JD Stanford Law School, 1991 BA Harvard College, 1987, cum laude

LLM King’s College, 1996, with merit Diploma in Law—City University and Inns

of Court School of Law, 1991 MA Boston University, 1982 BA Pepperdine University, 1979

Book Examples & Explanations: California Evidence (Wolters Kluwer 2010).

Articles

Articles A Modest Proposal in Deference to Diversity, 23 Nat’l Black L.J. 1 (2010).

The Gate(Way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act, 66 U. Miami L. Rev. (forthcoming 2011).

Iraq Was a Good War—It Sparked the Arab Spring, London Sunday Times (September 11, 2011).

An American Perspective, EU and US Relations in the 21st Century (Institute of Contemporary European Studies) Occasional Paper 06, 2011.

Presentations “In Conversation with Former Secretary of State Condoleezza Rice,” Pepperdine University School of Law (Feb. 9, 2011).

Presentations “Increasing Law Firm Diversity,” O’Melveny & Myers, Los Angeles, California (Oct. 19, 2011).

“What Is America Doing to Improve Its Image Abroad?” Westlake Village Republican Women, Federated (Jan. 27, 2011).

“A Teacher Who Looks Like Me,” National Conference on Race and Ethnicity, San Francisco, California (June 4, 2011).

Michael A. Helfand Associate Professor of Law

Associate Professor of Law and Associate Director, Diane and Guilford Glazer Institute for Jewish Studies

JD Boalt Law School, University of California, 1999 AB Princeton University, 1995

PhD Yale University, 2009 JD Yale University, 2007 BA Yeshiva University, 2002

Book

Articles

Naomi Harlin Goodno

Case Files for Basic Trial Advocacy (Lexis 2009) (with H. Mitchell Caldwell, Carol A. Chase, and L. Timothy Perrin).

Fighting for the Debtor’s Soul: Regulating Religious Commercial Conduct, 19 Geo. Mason L. Rev. (forthcoming).

Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, 86 N.Y.U. L. Rev. (forthcoming).

Book Chapter California “Three Strikes” Law Alleviates Crime, in Mandatory Minimum Sentencing (2010).

Presentations

Articles How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy that Survives First Amendment, Fourth Amendment, and Due Process Challenges, Wake Forest L. Rev. (forthcoming).

“A Liberalism of Sincerity: Religion’s Role in the Public Square,” Conference on Religious Law and State’s Affairs, Bar Ilan University (May 29-30, 2011).

“Religious Arbitration and the New Multiculturalism,” Faculty Colloquium, University of St. Thomas School of Law (Apr. 6, 2011).

Protecting “Any” Child: The Confidential Marital Communications Privilege in Child Molestation Cases, 59 U. Kan. L. Rev. 1 (2010).

Presentation “Global Criminal Prosecutions of U.S. Citizens,” SoCal Junior Faculty Workshop (May 2011).

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Limiting Article III Standing to “Accidental” Plaintiffs: Lessons from Environmental and Animal Law Cases

By Robert J. Pushaw 45 Georgia Law Review 1 (2010)

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his article examines standing to sue in federal court. The Supreme Court’s limitations on standing often thwart the vindication of federal law, especially in crucial areas like environmental regulation. Pushaw argues that the court should revise its standing doctrine to better reflect the original meaning of Article III and to promote greater clarity.

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tanding doctrine determines who can sue to enforce federal law. The Court has held that Article III, by extending “judicial power” to “Cases” and “Controversies,” restricts standing to plaintiffs who can demonstrate (1) a particularized “injury in fact” (2) caused by defendant (3) that is likely to be redressed judicially. . . .

The Court developed its basic standing requirements from 1939 to 1974 and has continually refined them. Unfortunately, they remain malleable and have often been applied subjectively to reach preferred results. . . . These problems are especially apparent with “injury in fact.” This requirement is easily met when a plaintiff has suffered physical harm or monetary loss.

The harder cases involve new rights Congress has created that have no common law analogue. The Court has responded by recognizing equally novel “injuries,” such as reduced aesthetic enjoyment of the environment. . . .

The “individualized injury” determination often depends on using certain magic words. Such arbitrariness also characterizes the other two Article III standards. First, “causation” is a discretionary policy judgment about how far back in a chain of events a court is willing to go. Second, ascertaining whether an injury is “likely” to be redressed involves guesswork about probabilities. . . .

Because the Court only issues standing opinions every few years, the doctrine has far greater practical impact in the lower federal courts. They have broad discretion in implementing flexible standing standards, especially in legal areas where the Court has not yet spoken.

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A timely example concerns the Animal Welfare Act (AWA), which prohibits inhumane treatment of animals. Federal courts at first denied standing under the AWA because it does not create causes of action for private parties, but rather leaves enforcement to the Department of Agriculture. . . . In several recent cases, however, the D.C. Circuit has granted such standing. . . .

This liberalization ignores two constitutional concerns.

First, lenient standing threatens separation of powers, as policy decisions are transferred from Congress and executive agencies to unelected federal judges. Second, whereas each agency implements its governing statute according to a set of enforcement priorities, private parties can sue defendants arbitrarily and thus threaten their liberty . . .

The vagueness of standing doctrine reflects its lack of a firm foundation in Article III’s text, structure, and history . . . [I] propose certain revisions that . . . more accurately reflect the original meaning of Article III and enhance clarity.

The definition of “judicial power” has remained stable since 1787: rendering a final judgment after interpreting the law and applying it to the facts. “Judicial power” necessarily must be exercised deliberatively, which means a court’s docket cannot grow so large that careful decision making becomes impossible.

That imperative places an outer limit on Congress’s broad Article III authority to control federal courts’ jurisdiction: Congress cannot expand their caseloads to intolerable levels, which might occur if it granted standing to millions of people. . . .

Moreover, Article III “judicial power” can be exercised only to decide “Cases” and “Controversies.” The Court has long asserted that standing is based on the historical understanding of these two words. Remarkably, however, no Justice has ever investigated their 18th-century usage. Even more curiously, the Court has never noticed that all of its standing decisions involve one category of Article III jurisdiction—“Cases” arising under the Constitution and federal statutes—whereas none concerns “Controversies.”

Recognizing this point would properly redirect the Court’s attention to the original meaning of the word “case”: a chance occurrence that invades someone’s legal rights and thereby gives rise to a cause of action, in which a court’s chief function is to

expound the law. Thus, standing should focus on the appropriate plaintiff who can bring an Article III “case”—namely, one whose legal rights have been violated fortuitously (involuntarily as a result of an event beyond plaintiff’s control) and who can therefore legitimately trigger the court’s expository function.

Applying this test, a court would find an “injury in fact” only when it befalls a plaintiff by chance. This sort of injury always exists when violation of a federal law results in tort, contract, or property damages. That explains why in most regulatory areas, the Court has held that Congress can entrust statutory enforcement to an agency and that no one else has standing except for those whose common law or constitutional rights have been directly abrogated. For example, AWA claims should ideally be litigated only by the USDA and plaintiffs who have experienced common law harms. Realistically, however, the Court will not overrule its precedent recognizing environmental and aesthetic injuries. Nonetheless, it should limit such cases by adopting a presumption that plaintiffs who suffer physical harm or financial loss meet the test of fortuity, whereas all others do not and are pursuing a deliberate litigation strategy.

Those latter plaintiffs should be able to rebut that presumption only by demonstrating that they suffered distinctive injuries that occurred fortuitously while they were engaging in lawful recreational activity for its own sake. . . . By contrast, standing should be denied to those who go somewhere specifically to look for legal violations to use as a basis to file a complaint. Such self-inflicted injuries should be treated as a species of feigned claims, which have long been barred. . . .

When someone’s claims arise fortuitously, it is usually easy to identify who caused the injury and whether the relief sought will redress it. On the other hand, a plaintiff using the courts to advance a policy agenda typically has to contrive not only an injury, but also causation and redressability. . . .

In short, Article III “Cases” arise by accident rather than design. Incorporating this insight would greatly improve standing doctrine.

Robert Pushaw joined the Pepperdine faculty in 2001. He previously taught at the University of Missouri, where he twice earned the Excellence in Research Award. Pushaw’s scholarship, which studies the influence of 18th-century Anglo-American political theory on modern Constitutional Law, has been published in law reviews at Yale, Harvard, Michigan, Berkeley, Northwestern, Cornell, Georgetown, Notre Dame, Iowa, North Carolina, and William & Mary.

Reprinted with permission of the Georgia Law Review. Footnotes have been omitted. The full excerpt is available at lawmagazine.pepperdine.edu.

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The Emerging Oversimplifications of the Government Speech Doctrine: from Substantive Content to a “Jurisprudence of Labels”

By Barry P. McDonald 2010 BYU Law Review 2071

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n his article, McDonald discusses the development of the government speech doctrine. He addresses how the current Court has transformed the doctrine from a tool of substantive analysis into “a jurisprudence of labels” and contends that this modern development is misguided. McDonald urges a return to a formulation and application of the government speech doctrine as it was originally conceived. The topic is of significance because that doctrine is currently being employed by the Court to allow the government suppression of viewpoints that would normally not be allowed under the First Amendment.

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T]he “government speech” doctrine . . . hold[s] that whenever it can be said that the government is engaging in speech, then it is not subject to First Amendment limitations with respect to the impact its actions or message may have on private speakers associated with that speech. Under . . . this doctrine, the [U.S. Supreme] Court has sanctioned the imposition of normally prohibited viewpoint restrictions on private speakers who accept government funds or on government employees speaking on matters of public concern; the compulsion of private-party funding for speech with which it disagrees; and the selective exclusion of speakers from traditional public fora based on the content of the speakers’ message. In other words, the government speech doctrine has become a First Amendment “escape hatch” for placing substantial restrictions or burdens on private speakers that would otherwise be subject to serious judicial scrutiny and constitutional doubt if traditional free speech principles were applied. . . .

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In this Article, I . . . trace the development of the government speech doctrine and demonstrate that it has become unhinged from its original purpose of assisting in the ordering of governmental and private speech interests in cases where they intersect and conflict. [W]henever the Court can label a message involving the interaction of both government and private speakers as primarily that of the government, it washes its hands of assessing the constitutionality of the burdens placed on the interests of the private speakers. . . .

A year after Keller v. State Bar of California [asserting that regular taxpayers do not have a First Amendment right to prevent ordinary government agencies from using their taxes to promote disagreeable views], the Court decided Rust v.

Sullivan [and took] the position that the government could constitutionally ban the operators of family planning clinics from providing abortion counseling as a condition of receiving federal funding, rejecting the contention that such a ban amounted to viewpoint discrimination prohibited by the First Amendment. . . . The Court made no reference to Keller or the government speech doctrine. . . .

Four years later, Justice Kennedy . . . built on this theme from Rust in dictum in a case where a religious student publication contended that the denial of printing subsidies by a public university amounted to unconstitutional viewpoint discrimination because secular student publications were eligible to receive them. The Court agreed with the plaintiff on the grounds that the university had created a virtual public forum to encourage student speech with the funds, and any viewpoint discrimination in administering them was unconstitutional.

Kennedy rejected the university’s reliance on Rust and related cases. . . . Instead, he characterized Rust as standing for the principle that when the government itself speaks or grants funds to private speakers to convey the government’s own message, it is then entitled to control that message. . . . But in the case under review, Kennedy reasoned, the government was facilitating the expression of a diversity of private views through the creation of a limited public forum. Once again, the Court made no mention of Keller or the government speech doctrine. . . . Kennedy later extended this reconceptualization of Rust in Board of Regents v. Southworth. . . . In dictum in that case, he set forth the central premise of the government speech doctrine articulated in Keller . . . but oddly cited to Rust, rather than Keller, in support of it. One year later, Kennedy again continued his morphing of Rust in a government speech subsidy decision . . . to support the proposition that the government can promote its own views through its speech or funding decisions. . . . And somewhat ironically, two years later . . . the Court seemed to return to the original meaning of Rust . . . and explicitly rejected the characterization of Rust as being dependent upon the government speaking a message.

Thus we can see that Justice Kennedy contributed substantially to the decoupling of the government speech doctrine from Keller. . . . [O]ne suspects [the reason behind] it had something to do with the specific results of Keller and Rust. Keller was the decision in which the Court validated the principle that as a general matter the government can take positions contrary to that of dissenting citizens, but the Court found it inapplicable to the agency speaking in that case (the State Bar) and decided against the government’s position. By contrast, in Rust the Court sided on behalf of the government interests over those of the dissenting private speakers (the objecting staff of the family planning clinics). Thus, when Kennedy was seeking support in Rosenberger v. Univ. of Virginia for the notion that the government can choose to fund its own messages through restrictions on private speakers in order to further its policies, he naturally turned to Rust rather than Keller. . . . The irony is that in Rosenberger, Southworth, and Legal Services Corp. v.

Velazquez, where Kennedy uncritically lifted the government speech doctrine out of its Keller context, his discussions were all dicta since the government was not a speaker in them. . . .

[Did] this uncritical translation of the Keller government speech doctrine to the restricted funding decisions matter[?]

I would argue that it did since what got lost in the translation was the principle that just as the government should not have carte blanche power to compel funding of disagreeable messages in every case where it speaks, so it should not have similar powers to impose speech restrictions on private speakers simply because they receive government money as part of a program that reflects a particular policy position.

Barry P. McDonald, professor of law, is a recognized scholar in the area of First Amendment Law. His writing on freedom of expression and religion has appeared in law reviews published by Northwestern, Emory, Notre Dame, Ohio State, and Washington and Lee. McDonald clerked for Chief Justice William H. Rehnquist during the court’s 1989­–90 term.

Reprinted with permission of the BYU Law Review.

Footnotes have been omitted. The full excerpt is available at lawmagazine.pepperdine.edu.

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Legal Research & Writing Program

from left: Steve Schultz, Mireille Butler, Hilary Reed, Nancy McGinnis, and Amy Levin

Makes an Impact on Students’ Success \By Jenny Rough (’99)

Recent Scholarly Activity by Legal Research and Writing Faculty Mireille Butler, 5 Practical Steps to Ensure Your Students Listen – You Can Catch More Flies with Honey!, Law Teacher, forthcoming Spring 2012 (Institute for Law Teaching and Learning).

Mireille Butler and Hilary Reed, Teaching the Bar Performance Test, 2012 AALS Conference, Legal Research and Writing section, Washington, D.C. (Forthcoming January 2012).

Pepperdine hosted the Los Angeles Legal Writing Institute (LWI) Workshop in December 2010.

Hilary Reed made a presentation, “Grading Papers and Handling Student Conferences: How to Grade Papers Without Losing Your Mind; Effective Comments; Best Practices” at the conference and is serving on the Program Book Subcommittee for the December 2011 LWI workshop.

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Good lawyers think and write with clarity and precision. Their arguments are logical and supported by authority, and their oral or written expression of those arguments is cogent and coherent. At Pepperdine University School of Law, the first year Legal Research and Writing program consists of a rigorous year-long course designed to equip students to strengthen their ability to research, analyze, and write.

The fall semester is dedicated to objective writing: first-year students are required to complete a closed library memo (where case law and relevant statutes are provided by the instructor), and an open library memo (where students research the law themselves).

The best way to learn writing is to do writing, so students are given individualized feedback on their writing and on their first assignment students are required to revise their initial submission and resubmit it. “The reason why one of our assignments requires students to revise the first draft of their memo is that most attorneys improve their legal research and writing skills based on the feedback and comments received from supervisors,” says Mireille Butler, assistant professor of law and interim director of the Legal Research and Writing Program.

At the end of each term, students are given a two-part exam consisting of a Bluebook citation test and a multiple choice section quizzing students on the material covered over the course. The spring semester exam adds a third component: a performance test. “Exams serve a great purpose,” says Butler. “I went to a law school that didn’t have a Legal Research and Writing exam, and I’m converted. Our students know so much more earlier on.”

Students who wish to have additional opportunities to hone their research and writing skills have numerous opportunities to do so. The law school supports four student-edited journals and offers each semester an array of seminars and other courses that provide writing experiences for students. Moreover, Professor Steve Schultz, assistant professor of law, serves as an upper-division legal research and writing professor and teaches courses in writing for second- and third-year students.

Butler says she receives e-mails all summer long from students who thank her for Pepperdine’s demanding program and to share stories of receiving high praise from their supervising attorneys in their summer program. “What we’re doing at Pepperdine is working,” she says.

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Clinical Education Program Prepares

from left: Brittany Stringfellow Otey, Richard Peterson, Laurie Serafino, Bruce Einhorn

Students for Practice and Provides Needed Services to the Community \By Jenny Rough (’99) During the last decade, Pepperdine has dramatically expanded its clinical offerings recognizing “the power of clinical experiences to engage and expand students’ expertise and professional identity through supervised responsibility for clients” as noted by the 2007 report on legal education by the Carnegie Foundation for the Advancement of Teaching. Pepperdine students today have many opportunities to enrich their education through participation in one of the six Pepperdine clinics maintained by the law school. The Clinical Program gives students the ability to serve low income families and individuals across the region while also gaining hands-on experience in the practice of law.

Directed by Brittany Stringfellow Otey, assistant professor of law, the Legal Aid Clinic and the Family Law Clinic are both housed in the Union Rescue Mission, one of the largest homeless shelters on Los Angeles’ skid row. There, student law clerks help clients with family law issues, in addition to tickets and warrants, expungements, applications for homeless court, credit, housing, taxes, and benefits. The Special Education Advocacy Clinic, directed by Richard Peterson, assistant professor of law and former president of the Orange County Regional Center, educates students about the nature of disabilities—such as autism, attention deficit disorder, and cerebral palsy—and provides opportunities for them to assist in the assessment of their clients’ special education legal needs and to represent them in the resolution of any disputes that may arise. Nidya Paredes (’06, JD ’09) serves as associate director of the clinic.

The Asylum Clinic, directed by Judge Bruce Einhorn, who enjoyed a distinguished career as a federal immigration judge before helping to found the Pepperdine clinic, provides law students the opportunity to represent indigent and underprivileged foreign-born individuals who seek asylum in the United States. The clinic’s primary focus is on claims of religious persecution, but extends to others with well-founded fears of persecution on recognized grounds. Susan Hill (JD ’93) and Emily Allen (JD ’05), who are experienced practitioners in the field, serve as supervising attorneys in the clinic. The Straus Institute for Dispute Resolution operates two additional clinics.

The Mediation Clinic provides students the opportunity to serve as a mediator in small claims court cases and other referred disputes. The Investor Advocacy Clinic, which was founded through a generous grant from the Financial Industry Regulatory Authority (FINRA) is led by director Robert Uhl, a partner in the law firm of Aidikoff, Uhl & Bakhtiari and a leader in the field, and associate director, Judith Hale Norris, formerly vice president of FINRA. Students in the clinic provide legal counsel to clients who have been wronged by their brokerage firms and don’t have the financial resources to pay legal fees.

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Recent Publications from Clinical Education Faculty

Richard M. Peterson Caught in the Cross-Fire: The Psychological and Emotional Impact of the Individuals with Disabilities Education Act (IDEA) upon Teachers of Children with Disabilities: A Therapeutic Jurisprudence Analysis, Int’l J.L. & Psychiatry (forthcoming).

The Persistence of Low Expectations in Special Education Law Viewed Through the Lens of Therapeutic Jurisprudence, 33 Int’l J.L. & Psychiatry 375 (2009)

Laurie B. Serafino Life Cycles of Revolutionary Upheavals Through Bob Dylan’s Eyes, 38 Fordham Urb. L.J. (forthcoming 2011).

No Walk in the Dog Park: Drafting Animal Cruelty Statutes to Resolve Double Jeopardy Concerns and Eliminate Unfettered Prosecutorial Discretion 78 Tenn. L. Rev. (forthcoming 2011).

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Faculty Publications and Speaking Engagements Bernard James

Douglas W. Kmiec

Professor of Law

Professor of Constitutional Law and Caruso Family Chair in Constitutional Law

JD University of Michigan, 1983 BGS University of Michigan, 1977

Articles

JD University of Southern California, 1976 BA Northwestern University, 1973, with honors

SROs, Safe Schools, and the Interagency Agreement, Nasro J. School Safety, Spring 2010

News

Safe Schools, Cell Phones, and the Fourth Amendment, Nasro J. School Safety, Winter 2009

Professor Kmiec returned to the law school faculty in June 2011, following his distinguished service from 2009 to 2011 as the United States Ambassador to Malta.

Safe Schools and the Law 2009, Nasro J. School Safety, Fall 2009

Books

The Safe Schools Movement and SRO Liability, Nasro J. School Safety, Summer 2009.

The American Constitutional Order (with Stephen B. Presser, John C. Eastman & Raymond B. Marcin) (LexisNexis 3d edition 2009 & 2011 supp.).

Safe Schools and Special Education Students, Nasro J. School Safety, Spring 2009.

The History, Philosophy, and Structure of the American Constitution (with Stephen B. Presser, John C. Eastman & Raymond B. Marcin) (LexisNexis 3d edition 2009 & 2011 supp.).

Janet E. Kerr

Individual Rights and the American Constitution (with Stephen B. Presser, John C. Eastman & Raymond B. Marcin) (LexisNexis 3d edition 2009 & 2011 supp.).

Executive Director, Geoffrey H. Palmer Center for Entrepreneurship and the Law and Laure Sudreau-Rippe Endowed Chair in Law

Presentation

LLM New York University Law School, 1979 JD Pepperdine University, 1978 BA Pepperdine University, 1975, summa cum laude

“Secularism Crucified,” University of Southern California, University-wide lecture (September 13, 2011).

Kristine S. Knaplund

Articles

Professor of Law

The Financial Meltdown of 2008 and the Government’s Intervention: Much-Needed Relief or Major Erosion of American Corporate Law? The Continuing Story of Bank of America, Citigroup, and General Motors, 85 St. John’s L. Rev. 49 (2011).

JD University of California, Davis, 1977 BA Oberlin College, 1974

Articles Synthetic Cells, Synthetic Life, and Inheritance, 45 Valparaiso L. Rev. 1361 (Summer 2011).

The Creative Capitalism Spectrum: Evaluating Corporate Social Responsibility Through a Legal Lens, 81 Temp. L. Rev. 831 (2009).

A New Era of Responsibility: A Modern American Mandate For Corporate Social Responsibility, 78 UMKC L. Rev. symposium issue 327 (2009).

The New Uniform Probate Code’s Surprising Gender Inequities, 18 Duke J. Gender L. & Pol’y 335 (Spring 2011).

Charity for the Death Tax?: The Impact of Legislation on Charitable Requests, 45 Gonzaga L. Rev. 713 (2010).

The Right of Privacy and America’s Aging Population, 86 Denver U. L. Rev. 439 (2009).

Presentations “The Uniform Probate Code: Remaking of American Succession Law,” Symposium at the University of Michigan Law School, American College of Trust and Estate Counsel (Oct. 2011).

“The New Biology: What Do Estate Planners Need to Know About Assisted Reproduction?” UCLA/CEB Estate Planning Institute (May 2011).

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Edward J. Larson

Presentations

University Professor and Hugh and Hazel Darling Chair in Law

“Transatlantic Giving,” STEP Philanthropy Conference (September 2008). “‘What if you have U.S. donors?’ Major Gift Tax Issues, Interactive Workshop for Fundraisers and Advisors,” European Association for Planned Giving (November 2007, March 2008, and September 2008).

PhD University of Wisconsin, 1984 JD Harvard University, 1979 MA University of Wisconsin, 1976 BA Williams College, 1974

Book An Empire of Ice : Scott, Shackleton, and the Heroic Age of Antarctic Science (Yale Univ. Press 2011).

Barry P. McDonald Professor of Law

Book Chapter

JD Northwestern University School of Law, 1988, cum laude BBA Loyola University of Chicago, 1981

Biology and the Emergence of the Eugenics Movement, in Biology and Ideology from Descartes to Dawkins, (D. Alexander and R. Numbers, eds., Chicago University Press, 2010).

Articles Censorship and the Media: A Foreward, 25 Notre Dame J.L. Ethics & Pub.Pol’y 1 (2011).

Articles Medical Rationing, Death Panels and the Rising Cost of Health Care, 33 Whittier L. Rev. (forthcoming 2011).

Poles Apart: Scott, Amundsen, and Science, Endeavour (forthcoming 2011).

The Emerging Oversimplifications of the Government Speech Doctrine: From Substantive Content to a “Jurisprudence of Labels”, 2010 B.Y.U. L. Rev. 2071 (2011).

The Supremes: Conservative Consolidation, California Lawyer (September 2011).

Putting Buck v. Bell in Scientific and Historical Context: Response to Victoria F. Nourse, 39 Pepp. L. Rev. (forthcoming 2011).

The Supremes: Selective Minimalism, California Lawyer (September 2010).

Greater Glory, Scientific American, June 2011, at 32-37.

Getting Beyond Religion as Science: “Unstifling” Worldview Formation in American Public Education, 66 Wash. & Lee L. Rev. 587 (2009).

Public Science for a Global Empire: The British Quest for the South Magnetic Pole, 102 Isis 1 (2011).

James M. McGoldrick, Jr.

Presentations Professor Larson has delivered illustrated lectures about his new book, Empire of Ice, at the Royal Society of London, the Reform Club in London, and the California Club in Los Angeles, among other venues. He has given interviews about the book to the BBC, the Guardian newspaper, and the scientific journal Nature, among others.

Professor of Law and Director, International Programs JD University of Chicago, 1969 BA Pepperdine University, 1966

Articles Speech: A Message From Mind to Mind, 61 Okla.

L. Rev. 1 (2008).

Khrista McCarden

Discretionary Points: A Grading Mystery, The Law Teacher, Spring 2007, at 6.

Associate Professor of Law JD Harvard Law School, 2003, magna cum laude AB Harvard University, 1998, cum laude

Articles Dual-Qualified Structures: A Tax-Efficient Solution for Charitable Giving in the U.S. and U.K., Family Foundation Advisor, September/October 2008.

Charitable Uses in the U.S., Offshore Investment, July/August 2007 (published in association with 17th Oxford Offshore Symposium, Jesus College, Oxford University) (with Richard Cassell).

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fcc Regulation Versus Antitrust: How Net Neutrality Is Defining the Boundaries

By Babette Boliek Boston College Law Review (forthcoming)

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he assertion of jurisdiction by the Federal Communications Commission (FCC) over any aspect of the Internet ecosystem has raised populist, congressional, and even judicial rhetoric to a crescendo and resulted in a recent vote to defund the boundaries between these regulatory and antitrust camps. Boliek’s article places the current crisis squarely in the context of the longstanding jurisdictional struggle between regulation and antitrust law. Focusing on recent case law, her article examines the jurisdictional framework to classify possible jurisdictional overreach.

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T]here is a crucial battle playing out in the world of Internet access provision. While the Internet is the natural home of competing business giants and warring digital avatars, the contest that will have the most sweeping ramifications for the future of the Internet is the turf war being waged between the FCC on the one hand and the Federal Trade Commission (FTC) and the Department of Justice (DOJ), on the other. Nothing less than jurisdiction over the development of the Internet is at stake.

Jurisdiction over Internet access provision is not the first confrontation between these particular government agents . . . [b]ut it is the current iteration of the FCC’s “net neutrality” regulations that has generated the latest contest. Roughly defined, net neutrality encompasses principles of commercial Internet access that include equal treatment and delivery of all Internet applications and content. For some, net neutrality stands further for the proposition that Internet access operators should not be permitted to provide different qualities of service for application providers (e.g., guaranteed speeds of transmission), even if those application providers can freely choose their desired quality of service. Net neutrality has reinvigorated . . . an underlying interagency tug of war [between the FCC and the DOJ/FTC] that reaches deep within, and far beyond, the communications industry.

Although the two regimes [regulation and antitrust law] share a commonality of purpose—to protect consumers and to

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promote allocative efficiencies in production—the two have quite distinct, predominately opposing, means of securing social benefits. . . . The battle between these two regimes may be broadly summarized in a single issue . . . : in the face of the industry-specific regulator, what is (or what should be) the role of antitrust law?

Antitrust law preserves the process of competition across all industries by condemning anticompetitive conduct when it occurs. In contrast, industrial regulation by its nature is a public declaration that, in a given industry, market forces are too weak or underdeveloped to produce the consumer benefits that are realized in competitive markets. . . . Not surprisingly, regulatory agencies were historically created as substitutes for market forces in the few markets that, by the nature of the product or technology, were natural monopolies, or severely prone to monopoly. Therefore, the threshold determination of which industries are to be singled out for industry-specific regulation, and to what degree, is of vital importance. . . .

The net-neutrality debate has brought attention to the larger concerns related to the boundaries between the FCC and antitrust authorities. The shaping of net-neutrality regulatory policy has operated under the assumption that the FCC has the authority by virtue of its ancillary jurisdiction to regulate Internet transmission providers. This confidence in the FCC’s scope of authority proved to be misplaced by the D.C. Circuit’s recent decision in Comcast Corporation v. FCC [where the court] clarified that the FCC may use its ancillary jurisdiction only when the proposed action is specifically related to the agency’s mandated responsibilities as Congress delineated in the Communications Act. In an act of superior confidence or of sheer foolishness, the FCC has subsequently enacted three formal net-neutrality rules based on the same jurisdictional premise that was defeated in Comcast . . . .

The open-ended nature of the FCC’s mandate . . . has historically allowed the FCC to expand its jurisdictional reach far beyond the industries and problems within the contemplation of the original, legislative drafters. Such jurisdictional expansion is what critiques of net neutrality insist is occurring now as the FCC would assert jurisdiction over aspects of the Internet ecosystem.

The legal uncertainty of FCC authority has led the FCC Chief Commissioner and some commentators to search for more secure jurisdictional grounds for net neutrality rulemaking—to figuratively place the marketplace for Internet service providers (ISPs) deeper within the regulated state and, concomitantly, perhaps further out of reach of antitrust law. . . .

Ironically, jurisdiction over wireless Internet access, the transport system not subject to the recent net neutrality rules, is the one technology where FCC jurisdiction is most easily asserted. Wireless Internet access can be regulated under the FCC’s Title III authority over all broadcast licenses by direct insertion of regulatory terms and conditions into the operators’ spectrum license agreements. In addition to licenses, the FCC shares oversight responsibilities with antitrust authorities with respect to any merger involving a regulated, communication company and can dictate onerous terms that the parties must accede to in order to close the deal. . . .

The recent Comcast decision should not be dismissed as an inconvenient hurdle to be sidestepped by reclassification; rather it marks a pivotal invitation to Congress to redefine the boundaries between the FCC and antitrust authorities. . . . Before that can be done, however, the rules of the road—the issue of jurisdiction—must be clearly decided.

Babette Boliek, JD, PhD, associate professor of law, focuses her research and writing on analyzing legal issues in the fields of administrative, antitrust, and communications law with particular emphasis on the effects of regulations on the U.S. telecommunication industry. Her most recent article challenges the various jurisdictional theories that underpin the Federal Communications Commission’s (FCC) new net-neutrality regulations. In addition, her article pinpoints the tensions between FCC regulation and antitrust law in the Internet ecosystem. Boliek writes on this topic because of its relevance in today’s regulatory environment as both the United States Court of Appeals for the D.C. Circuit and Congress have expressed grave doubt as to whether the FCC’s jurisdictional limits permit the agency to promulgate net neutrality rules of any kind.

Reprinted with permission of the Boston College Law Review. Footnotes have been omitted. The full excerpt is available at lawmagazine. pepperdine.edu.

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Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders

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ulticulturalism has long served as a principle unifying various philosophical, political, and sociological programs that place a high value on culture and cultural groups. Yet within multiculturalism’s framework lies a recent trend towards a “new multiculturalism” which focuses not simply on principles of recognition and inclusion, but on broader principles of group autonomy and self-government.

However, as the claims of new multiculturalism have evolved, so has there emerged a growing resistance to the possibility of ceding authority and autonomy to cultural groups. . . .

Of course, for there to be a “new” multiculturalism, there must also be an “old” multiculturalism. The “old” multiculturalism largely focused on the recognition of previously marginalized minority groups as an essential feature of liberalism’s dedication to the principles of equal respect and equal dignity. . . . Thus, the great multicultural debates of the late 20th century—and even in the early 21st century—followed this same script, centering on such questions as minority representation in higher education, the constitutionality of prayer in public schools, the incorporation of religious views into public discourse, and permitting religious symbols on government property. In this way, the old multiculturalism focused on the importance of recognizing and integrating minority groups into the public sphere.

Increasingly, however, these debates are becoming secondary to a “new” multiculturalism. In the “new” multiculturalism, minority groups—especially religious minority groups—are less concerned with receiving recognition and more concerned with maintaining autonomy. Philosophically, the new multiculturalism conceives of minority identity as embodied not only in symbols and histories, but also in rules and practices that often constitute an independent legal order. And for minority communities to maintain their identity, they must also find a way to retain authority over the interpretation, application, and enforcement of communal rules within their membership.

Accordingly, the new multiculturalism looks less for symbolic integration and more for jurisdictional differentiation. Put differently, if in the past we debated multicultural dilemmas, we now find ourselves increasingly forced to navigate multilegal conflicts.

By contrast to the relative success of the old multiculturalism, the philosophy and politics of the new multiculturalism have not faired well. Indeed, the Supreme Court has met claims—from the free exercise claims of Native Americans to the associational claims of the Christian Legal Society—with strong skepticism,

By Michael A. Helfand 86 NYU Law Review (forthcoming 2011)

T

his article reconsiders how courts might use arbitration law to respond to contemporary debates over the role of religious law and religious tribunals under U.S. law. There is a trend toward what he has termed the “new multiculturalism,” where conflicts between law and religion are less about recognition and symbolism and more about conflicting legal orders. Nothing typifies this trend more than the increased visibility of religious arbitration, whereby religious groups use current arbitration doctrine to have their disputes adjudicated before religious courts and in accordance with religious law.

However, with growing skepticism regarding the oppressive potential of religious majorities, critics have questioned whether religious arbitration has any place in a regime dedicated to individual liberties. In light of these trends, Helfand addresses the following question: under what circumstances should U.S. courts enforce arbitration awards issued by religious courts in accordance with religious law?

In answering this question, he proposes two reforms to current arbitration doctrine in order to meet the challenges of the new multiculturalism: (1) courts should redefine the scope of enforceability of religious arbitration awards by limiting the application of the public policy exception to vacate religious arbitration awards and (2) courts should expand the application of unconscionability to void religious arbitration agreements.

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largely unwilling to grant religious and cultural groups increased autonomy and self-governance rights.

However, while public law has not embraced the new multiculturalism, private law most undoubtedly has. Indeed, for the better part of a century, courts have allowed minority groups —most notably religious groups—to piggyback on the arbitration system in order to legally enforce religious arbitration awards in U.S. courts. As a result . . . co-religionists can have their disputes resolved by religious authorities in accordance with religious law—and for that resolution to receive the binding force of U.S. law. In this way, religious arbitration courts serve as the quintessential institution of the new multiculturalism, providing religious groups with the law-like autonomy that has been withheld under public law. . . .

However, the attack on religious arbitration has now reached the shores of the United States. This attack, which began with questions about the procedural safeguards in religious arbitration, has slowly morphed into a national movement unwilling to cede any sort of jurisdictional authority to religious tribunals. . . .

It is, of course, far from surprising that attempts to formally introduce religious arbitration into state legal systems have met with such ferocious resistance. Religious arbitration courts are perceived as challenging the nation-state’s status as the exclusive source of legitimate law. . . .

This article poses the following question: when should courts enforce the awards of religious arbitration tribunals adjudicating disputes in accordance with religious law? At the heart of this question is a debate over whether the trend towards the new multiculturalism—emphasizing the need of communities to secure some degree of autonomy and selfgovernance—can be embodied in concrete institutions without threatening fundamental individual liberties. In line with recent scholarship emphasizing the importance of First Amendment institutions, this article argues that religious arbitration courts serve the freedom-enhancing role of the new multiculturalism by providing religionists with a forum to adjudicate disputes in accordance with their own religious beliefs and practices. In this way, religious arbitration courts “contribute to . . . the reality of religious freedom under the law” by serving as part of the infrastructure that makes religious freedom possible.

Michael A. Helfand, JD, PhD, associate professor of law and associate director of the Diane and Guilford Glazer Institute for Jewish Studies, has worked extensively on the intersection of group rights and the law, including religious arbitration, Equal Protection Clause jurisprudence, and political theories of toleration. After completing his JD and PhD (in political science) from Yale and practicing in the area of complex commercial litigation with Davis, Polk & Wardwell, Helfand joined the Pepperdine faculty in 2010. He believes the issue addressed in this article is important today because, in contrast to more extreme views, arbitration law can serve both as a tool to promote religious institutions while still protecting the most vulnerable members of our society.

Reprinted with permission of the NYU Law Review.

Footnotes have been omitted. The full excerpt is available at lawmagazine.pepperdine.edu.

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The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion, and the Future of American Arbitration

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he debate surrounding enforcement of predispute arbitration agreements in standardized consumer and employment contracts has reached fever pitch with the publication of three Supreme Court cases: StoltNielsen S.A. v. AnimalFeeds International, 130 S. Ct. 1758 (2010); Rent-A-Center, West v. Jackson, 130 S. Ct. 2772 (2010); and AT&T Mobility LLC v.

Concepcion, 131 S. Ct. 1740 (2011).

In its zeal to further its evolving vision of the Federal Arbitration Act the Court has eliminated key safeguards aimed at ensuring fundamental fairness to consumers and employees in arbitration. The Court’s relative inflexibility is a significant contributor to legislation aimed at dramatically restricting the use of predispute arbitration agreements. Unfortunately, these legislative responses, like the Court’s decisions, lack a solid empirical foundation. Neither of the «extremes» represented by Court decisions or proposed legislation are the best courses.

A more thoughtful approach may lead to more appropriate process choices. Two agencies are currently evaluating whether to outlaw arbitration in a broad range of consumer contracts, increasing the urgency of this topic.

I

n the highly politicized struggle over employment and consumer arbitration, expectations regarding the future of the arbitration law and policy shift dramatically with the variable political climate in Washington. . . .

Underlying today’s debate is a fundamental disagreement about the ability of binding arbitration to provide justice for consumers and employees, a debate that in some respects reflects the larger political divide. Although there is a growing body of empirical research on arbitration in employment and consumer settings, proponents and opponents of arbitration both find empirical support for their positions. Some studies may be flawed by polemic, others offer considerable room for interpretation, and no single study, however carefully constructed, has offered a complete picture.

If we are ever to bridge the gap in understanding and perception, we must find a way to address a number of tough realities. First, there is the difficulty of obtaining sufficient

By Thomas J. Stipanowich The American Review of International Arbitration (forthcoming 2012)

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reliable data on largely private arbitration processes. Second, there is a growing and shared recognition that data harvested in one specific context is of little or no relevance to other scenarios, and that empirical research must take account of a variety of contextual factors including the transactional setting; the status or identity of disputants (such as employees); the role of counsel in dispute resolution; the rules governing arbitration and their provenance; as well as the quality of administration or regulation by the arbitral institution (AAA, FINRA, etc.), if any. As one scholar concludes, the nature and performance of arbitration procedures in different settings presents a very complex picture, making it impossible to “draw confident conclusions about the effect of invalidating wide swaths of arbitration agreements.”

Third, we cannot simply examine and evaluate arbitration in isolation, but must compare its operation to the “default option,” going to court. Critically, a recent Federal Trade Commission study examining the need for changes in the debt collection system concluded “that neither litigation nor arbitration currently provides adequate protection for consumers.”

Fourth, there is the difficulty of identifying appropriate parameters for measuring and comparing the operation of arbitration, including process costs, time to resolution of the dispute, outcomes, and user perceptions. In some circumstances “outcomes” may require measurement by qualitative, as well as quantitative means.

Fifth, comparisons between adjudicative processes must factor in the potential impact of pretrial dismissals, which are much more likely in court than in arbitration, and defaults. Sixth, there is the much-discussed but little-understood “repeat player” dynamic, which has gripped academic imaginations for a number of years but which may be more complex and multifaceted than previously posited.

Good decision making about process choices must begin with careful, distanced reflection on what we need to know and how we get it. The inquiry should be framed to enable us to move well beyond the virtually meaningless “arbitration is good/arbitration is bad” dichotomy to look at the capabilities, limitations, and real costs of different process choices as played out in the dynamics of different contractual settings. Since Dodd-Frank decreed that regulatory bodies should examine arbitration in the context of different consumer finance transactions and of securities brokerage disputes, transactional scenarios within these arenas are obvious starting points. Given proper time, space, and technology, we would want to answer questions like these in each context:

(1) What are the essential elements (measured in terms of process costs, cycle time, due process, and outcomes) of a satisfactory system of justice for consumers?

(2) Arbitration a.

Are there forms of binding arbitration that meet the criteria in (1)?

b.

To the extent they do not, is it possible to meet these criteria through enhanced statutory standards for judicial oversight, regulation by a public body, or other means?

c.

What are the transaction costs associated with ensuring that arbitration meets the criteria in (1), and how are they/should they be borne?

(3) The courts a.

How well do court procedures meet the criteria in (1)?

b.

To the extent they do not, is it possible to conform court procedures to these criteria?

c.

What are the transaction costs associated with providing court procedures that meet these criteria?

(4) Are there other cost-beneficial process options (administrative hearing procedures, other “hybrid” processes) to satisfy the criteria in (1)?

(5) To what extent might other approaches, employed alongside or in advance of binding adjudication (customer service desks, hotlines, mediation, etc.), contribute to effective management of conflict?

(6) To what extent might the effective use of online dispute resolution (ODR) affect the foregoing calculi?

(7) What is the proper role of and framework for consolidated/ class actions?

Thomas J. Stipanowich holds the William H. Webster Chair in Dispute Resolution and is academic director of the Straus Institute for Dispute Resolution. He has written widely in the dispute resolution field, especially in the area of arbitration, publishing several books and numerous articles. He currently is serving as an advisor on the ALI Restatement of U.S. Law on International Arbitration. In 2008 he was honored with the D’Alemberte/Raven Award, the ABA Dispute Resolution Section’s highest honor, for his contributions to the field.

Reprinted with permission of the American Review of International Arbitration. Footnotes have been omitted.

The full excerpt is available at lawmagazine.pepperdine.edu.

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Faculty Publications and Speaking Engagements Gregory S. McNeal

Derek Muller

Associate Professor of Law

Associate Professor of Law

JD Case Western Reserve University, 2006 MPA American University, 2003, with distinction BA Lehigh University, 1999

JD University of Notre Dame, 2007, summa cum laude BA Hillsdale College, 2004, summa cum laude

News

Articles

Professor McNeal has recently testified before Congress on jihadist Internet activities, consulted with members of the United States Congress on cyber warfare legislation and religious extremism and recruiting, and engaged in advisory work with the National Security Agency and the Department of Defense.

More Thoughts on the Compact Clause and the National Popular Vote: A Response to Professor Hendricks, 7 Election L.J. 227 (2008).

The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L.J. 372 (2007).

Book Chapter Are Targeted Killings Unlawful Killings: A Case Study in Empirical Claims Without Empirical Proof, in Targeted Killings: Law & Morality in an Asymmetrical World, (Claire Finkelstein, Jens David Ohlin, and Andrew Altman eds., Oxford University Press, forthcoming 2012).

Grant Nelson

Articles

Books

T he Status Quo Bias and Counterterrorism Detention, 101 J. Crim.

L. & Criminology 855 (2011).

Contemporary Property (with Dale A. Whitman, Colleen Medill & Shelley Ross Saxer) (West 4th ed. forthcoming).

A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements, 59 DePaul L. Rev. 943 (2010).

Institutional Legitimacy and Counterterrorism Trials, 43 U. Rich. L. Rev. 967 (2009).

Anthony Miller Professor of Law JD Pepperdine University, 1977 MA California State University, Long Beach, 1972 BA California State University, Long Beach, 1967

News On March 10, 2011, Professor Miller was appointed to a five-year term as a commisioner on the Los Angeles City Employee Relations Board. The board hears labor relations matters between the city and unions which represent all employees in the city, similar to the role of the National Labor Relations Board.

Book Family Law: Cases, Materials, And Problems (Lexis 3d ed. forthcoming 2012).

Article

William H. Rehnquist Professor of Law JD University of Minnesota, 1963 BA University of Minnesota, 1960

Equitable Remedies, Restitution, and Damages: Cases and Materials (West 8th ed.

2011).

Cases and Materials on Real Estate Transfer, Finance, and Development (West 8th ed. 2009).

Article Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law, 37 Pepp. L. Rev. 583 (2010).

Presentations “The Mortgage Meltdown: Where Do We Go from Here?” Western New England University School of Law (Mar. 7, 2011).

Moderated the Presentation of Winning Scholarly Papers, 2011 AALS Meeting (Jan. 2011).

Moderated Federalist Society Tenure Track Faculty Scholars Presentation, AALS Meeting (Jan. 2011).

Member of 2010–2011 AALS Scholarly Papers Competition Selection Committee (2010–11).

“Mortgage Foreclosure Crisis: Does State Pro-Debtor Foreclosure Law Worsen the Bill for Federal Taxpayers?” University of Pennsylvania School of Law, Student Federalist Society Chapter (Feb. 8, 2010).

The Case for the Genetic Parent: Stanley, Quilloin, Caban, Lehr, and Michael H. Revisited, 53 Loy. L. Rev. 395 (2007).

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Gregory L. Ogden

Robert Popovich

Professor of Law

Professor of Law

LLM Columbia University, 1981 LLM Temple University, 1978 JD University of California, Davis, 1973 BA University of California, Los Angeles, 1970, cum laude

JD Pepperdine University, 1989, summa cum laude MBT University of Southern California, 1977 BS California State University, Northridge, 1975, with honors

Book Chapter

News

California Public Administrative Law, in 41 (Chapters 470 to 472B) and 41A (Chapters 473 to 474C) California Forms of Pleading and Practice Annotated (LexisNexis, quarterly updates, including December 2006, April 2007, September 2007, August 2009, January 2010, February 2011, August 2011).

Professor Popovich is serving as a Visiting Professor of Law at Southwestern Law School during the Fall 2011 semester and will return to Pepperdine for the spring term.

Report

Federal Income Tax (Exam Pro Series) (West 2d ed. 2007).

Book

Revised Model State Administrative Procedure Act, National Conference of Commissioners on Uniform State Laws (NCCUSL) (2006-2010).

Robert J. Pushaw

Presentation

James Wilson Endowed Professor of Law

“New Rules of Evidence and Procedure for the State Bar of California,” Training for Prosecutors and Defense Counsel in Los Angeles and San Francisco (Jan. 2011).

JD Yale University, 1988 BA La Salle College, 1980, summa cum laude

Book Chapters The Enemy Combatant Decisions, in National Security, Civil Liberties, and The War on terror (M. Katherine B. Darmer, Richard D. Fybel, eds. 2011).

L. Timothy Perrin Vice Dean and Professor of Law JD Texas Tech University, 1987, cum laude BA Lubbock Christian University, summa cum laude

Justifying Wartime Limits on Civil Rights and Liberties, in National Security, Civil Liberties, and The War on terror (M. Katherine B. Darmer, Richard D. Fybel, eds. 2011).

Books

Articles

The Art and Science of Trial Advocacy (with H. Mitchell Caldwell and Carol A. Chase) (Lexis 2d ed. 2011).

Limiting Article III Standing to “Accidental” Plaintiffs: Lessons from Environmental and Animal Cases, 45 Ga. L. Rev. 1 (2010).

Case Files for Basic Trial Advocacy (with H. Mitchell Caldwell, Carol A. Chase & Naomi Harlan Goodno) (Lexis 2009).

Article

Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic?, 84 Notre Dame L. Rev. 1975 (2009).

Presentation “U.S. Supreme Court 2011 Term,” UCLA Law School (September 2011).

The Perplexing Problem of Client Perjury, 76 Fordham L. Rev. 1707 (2007, symposium issue).

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Faculty Publications and Speaking Engagements Peter Robinson

Presentations

Managing Director, Straus Institute for Dispute Resolution, and Associate Professor of Law

“Association for Law, Property, and Society Annual Conference,” Georgetown School of Law (Mar. 2011).

JD Hastings College of Law, 1980 BA University of California, San Diego, 1977, magna cum laude

“Expanding the First-Year Curriculum: Making Course Choices in the First Year,” The Southeastern Association of Law Schools (SEALS) Conference (July 2011).

Articles

Mark S. Scarberry

An Empirical Study of Settlement Conference Nuts and Bolts: Settlement Judges Facilitating Communication, Compromise, and Fear, Harv. Negot.

L. Rev. (forthcoming).

Professor of Law

Opening Pandora’s Box: An Empirical Exploration of Judicial Settlement Ethics and Techniques, 27 Ohio St. J. on Disp. Resol. (forthcoming).

JD University of California, Los Angeles, 1978 AB Occidental College, 1975, magna cum laude

Settlement Conference Judge—Legal Lion or Problem Solving Lamb: An Empirical Documentation of Judicial Settlement Conference Practices and Techniques, 33 Am. J. Trial Advoc. 113 (2009).

Book Business Reorganization in Bankruptcy: Cases and Materials (with Klee, Newton & Nickles) (4th ed.

Thomson-Reuters-West forthcoming).

Presentations Planned and Facilitated Teaching ADR in Law Schools, Pepperdine University School of Law, Malibu, California (June 2011).

Articles

“Mediating the Litigated Case,” Calgary University School of Law, Calgary, Canada (May 2011).

A Critique of Congressional Proposals to Permit Modification of Home Mortgages in Chapter 13 Bankruptcy, 37 Pepperdine L. Rev. 635 (2010, symposium issue).

“How to Teach a Law School Mediation Course for Chinese Professors,” Beijing Arbitration Commission, Beijing, China (funded by a grant by the U.S.-China Legal Cooperation Fund) (Jan. 2011).

Mortgage Wars Episode V—the Empiricist Strikes Back (or Out): A Reply to Professor Levitin’s Response, 37 Pepperdine L. Rev. 1277 (2010).

Shelley Ross Saxer Professor of Law and Director, Wm. Matthew Byrne, Jr., Judicial Clerkship Institute JD University of California, Los Angeles, 1989 BS Pepperdine University, 1980, summa cum laude

Books Environmental Sustainability: Law and Policy (with Craig “Tony” Arnold, Hari Osofsky & Dan Tarlock) (Aspen forthcoming).

Historical Considerations and Congressional Representation for the District of Columbia: Constitutionality of the D.C. House Voting Rights Bill in Light of Section Two of the Fourteenth Amendment and the History of the Creation of the District, 60 Alabama L. Rev. 783 (2009).

John Leland and James Madison: Religious Influence on the Ratification of the Constitution and on the Proposal of the Bill of Rights, 113 Penn St. L. Rev. 733 (2009).

Presentation “The Supreme Court Takes on Bankruptcy: Clarity and Confusion,” National Association of Attorneys General bankruptcy conference in Austin, Texas, Oct. 26, 2011.

Contemporary Property (with Grant Nelson, Dale A. Whitman, and Colleen Medill) (West 4th ed. forthcoming).

Articles The Fluid Nature of Property Rights in Water, 20 Duke Envtl. L. & Pol’y F. (forthcoming).

Plenty of Fish in the Sea? Managing Water Rights Using Fishing Rights as a Model, Marq. L. Rev. (forthcoming).

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Thomas J. Stipanowich

Peter T. Wendel

Academic Director, Straus Institute for Dispute Resolution, William Webster Chair in Dispute Resolution, and Professor of Law

Professor of Law JD University of Chicago Law School, 1983, cum laude MA St. Louis University, 1980 BS University of Chicago, 1979, cum laude

JD University of Illinois, 1980, magna cum laude MA University of Illinois, 1976 BS University of Illinois, 1974, highest honors

Book Deconstructing Legal Analysis: A 1L Primer (Aspen 2009).

Books College of Commercial Arbitrators Protocols for Expeditious, Cost-Effective Commercial Arbitration (College of Commercial Arbitrators,Thomas J. Stipanowich et al., eds., 2010).

Articles

Resolving Disputes: Theory and Practice for Lawyers (with Jay Folberg, Dwight Golann & Lisa Kloppenberg) (Aspen Publishers 2d ed. 2010).

Protecting Newly Discovered Antiquities: Thinking Outside the “Fee Simple” Box, 76 Fordham L. Rev. 1015 (2007).

The Succession Rights of Adopted Adults: Trying to Fit a Square Peg into a Round Hole, 43 Creighton L. Rev. 815 (2010).

Book Chapter Revelation and Reaction: The Struggle to Shape American Arbitration, in Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2010 (Martinus Nijhoff Publishers, forthcoming).

Maureen Arellano Weston

Article

JD University of Colorado, 1992 Order of the Coif BA University of Denver, 1987,

magna cum laude

Associate Dean for Research and Professor of Law

The Third Arbitration Trilogy, Colum. Am. Rev. Int’l Arb. (forthcoming).

Presentations Annual Conference on Dispute Resolution, Keynote Speaker, Minnesota Bar Association, Minneapolis, Minnesota (Oct. 2011).

Books Arbitration: Cases and Materials (with Stephen K. Huber) (3d ed. forthcoming).

“The Third Arbitration Trilogy and the Future of U.S. Arbitration,” Worlds of Work: Employment Dispute Resolution Systems Across the Globe, Fitzwilliam College, Cambridge, England, July, 2011

Sports Law: Cases and Materials (and instructor’s manual) (7th ed. forthcoming).

National Conference on Teaching ADR in Law Schools, Co-Organizer/ Moderator, Pepperdine University School of Law, June 21-22, 2011.

Articles NCAA Sanctions: Assigning Blame Where It Belongs, 52 B.C. L. Rev. 551 (2011).

Deanell Reece Tacha Duane and Kelly Roberts Dean and Professor of Law JD University of Michigan School of Law, 1971, Order of the Coif BA University of Kansas, 1968

Articles Diversity in the Judiciary: A Conversation with Deanell Tacha, 59 U. Kan. L. Rev. 1037 (2011).

The Other Avenues of Hall Street and Prospects for Judicial Review of Arbitral Awards, 14 Lewis & Clark L. Rev. 929 (2010).

Presentations “Legal Issues and the London 2012 Olympic Games,” Hot Topics in Sports and Business Conference, National Sports Law Institute, Marquette University School of Law (Oct. 21, 2011).

“Sports Law Dispute Resolution,” University of Nevada, Las Vegas, Nevada (June 2011).

“Teaching Arbitration in an ADR Survey Course,” Conference on Teaching ADR, Malibu, California (June 2011).

Training the Whole Lawyer, 96 Iowa L. Rev. 1699 (2011).

In Memoriam: Requiem for a Goldsmith, 2010 B.Y.U. L. Rev. 353 (2010).

Women and Law: Challenging What Is Natural and Proper, 31 Nova L. Rev. 259 (2007).

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Distinguished Visiting Professors

Each year Pepperdine Law welcomes distinguished visiting faculty, Lawyers, and judges into its classrooms to inform, inspire, and enhance the educational experience for students.

Meet some of our recent guests.

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Distinguished Visiting Professors FACULTY

LAWYERS

Akhil Reed Amar, the Fall D & L Straus Distinguished Visiting Professor for six consecutive years, is the Sterling Professor of Law and Political Science at Yale Law School and considered by many to be the most outstanding constitutional law scholar of his generation.

Mark A. Behrens, the Fall 2010 Distinguished Practitioner in Residence, is a partner in the Washington, D.C.-based Public Policy Group of Shook, Hardy & Bacon LLP and, for almost two decades, has been extensively involved in product liability law, defense litigation, liability reform, and counseling in the prevention of liability exposure.

Paul L. Caron, one of the leading entrepreneurial tax scholars in the country, Charles Hartsock Professor of Law at the University of Cincinnati, and editor of the popular TaxProf blog, joined Pepperdine as the D & L Straus Distinguished Visiting Professor in the Spring 2011. He will make a return visit in Spring 2012.

Roger Cossack, the Spring Distinguished Practitioner in Residence for five consecutive years and legal analyst for ESPN, melds his unique experience as a journalist and lawyer in his popular course on Media and the Law.

Laurie L. Levenson, professor of law and the William M. Rains Fellow at Loyola Law School, where she teaches Evidence, Criminal Law, Criminal Procedure, Ethics, Antiterrorism, and White-Collar Crime, will return to Pepperdine to serve as a D & L Straus Distinguished Visiting Professor for Spring 2012.

Charles Eskridge (JD ’90), a partner with the commercial litigation law firm of Susman Godfrey LLP, in Houston, Texas, is the Distinguished Practitioner in Residence for Fall 2011, teaching Origins of the Federal Constitution.

Gary Haugen, the founder, president, and CEO of human rights agency International Justice Mission (IJM), joined the School of Law faculty as a Distinguished Practitioner in Human Rights in Spring 2011 to teach a seminar titled Human Rights and the Rule of Law in the Developing World.

He will return to teach the course in Spring 2012.

Ellen Pryor, the Fall 2010 D & L Straus Distinguished Visiting Professor, is the Homer R. Mitchell Endowed Professor of Law at the Southern Methodist University Dedman School of Law and one of the country’s leading scholars in the field of torts.

JUDGES Justice Myron Steele, the seventh chief justice of the Delaware Supreme Court and the Fall 2010 and 2011 Distinguished Visiting Jurist, has presided over major corporate litigation and business governance disputes and writes frequently on issues of corporate document interpretation and corporate governance.

Justice ALLEN LINDEN serves as Distinguished Visiting Jurist at the law school, teaching Advanced Torts Seminar each spring. Previously he served as supernumerary judge of the Federal Court of Appeal of Canada and as judge of the Supreme Court of Ontario.

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recent events

Dean Tacha Hosts Discussion with Distinguished Women Judges

Kenneth W. Starr Headlines the Fifth Annual William French Smith Memorial Lecture

“I spent 25 years on the United States Court of Appeals, and in the process I met women whose journeys have been very similar to my own, and they are journeys and stories that have very little been told,” remarked Dean Deanell Reece Tacha as she opened “Hearing Her Story: Reflections of Women Judges” to an eager audience in the law school’s Caruso Auditorium on September 23.

Ken Starr, president of Baylor University and former dean of Pepperdine School of Law, returned to Malibu October 11 to present the fifth annual William French Smith Memorial Lecture.

Starr spoke on the topic “The Justice Department: From Reagan to Obama,” along with conversationalists and fellow justice department colleagues F. Henry Habicht II, a pioneering figure in the areas of environmental business and policy and a leading contributor to environmental innovation; Ambassador Douglas W. Kmiec (ret.), Caruso Family Chair and professor of constitutional law at Pepperdine School of Law; and the Honorable Carolyn B. Kuhl, supervising judge of the civil departments of the Los Angeles Superior Court. Deanell Reece Tacha, Duane and Kelly Roberts Dean of Pepperdine Law and former judge of the U.S. Court of Appeals for the 10th Circuit, served as moderator.

At the event, Tacha, former circuit judge, U.S. Court of Appeals for the 10th Circuit, shared the stage with her distinguished panel of guests: the Honorable Carolyn Dineen King, circuit judge, U.S. Court of Appeals for the Fifth Circuit; the Honorable Dorothy W. Nelson, circuit judge, U.S. Court of Appeals for the Ninth Circuit; and the Honorable Rosemary Barkett, circuit judge, U.S. Court of Appeals for the 11th Circuit.

“What happened to us in the early days of our careers and where we are now in our careers is the story I’ve asked three of my closest friends on the judiciary to tell,” Tacha continued. The event officially welcomed Dean Tacha, who took office June 1, and served as a stop along her national tour.

Named in honor of the former attorney general, the William French Smith Memorial Lectures on Law and the Judiciary serve as an ongoing tribute to Smith. Smith served as U.S. attorney general from 1981 to 1985 and was a longtime friend and confidant of President Ronald Reagan. Past speakers in the Pepperdine series include Supreme Court Justices Anthony M. Kennedy, Sandra Day O’Connor, Clarence Thomas, and Samuel Alito.

Watch video of the event: law.pepperdine.edu.

Learn more about Dean Tacha’s national tour: law.pepperdine.edu/tachatour

Watch the lecture online: law.pepperdine.edu/wfs

UPCOMING EVENTS November 14 The Straus Institute Presents a Conversation with Ken Feinberg

February 18 The 39th Annual School of Law Dinner February 23–25 The Nootbaar Institute Presents: “The Competing Claims of Law and Religion”

March 1 Dispute Resolution Law Journal Symposium: “Apology, Forgiveness, and Reconciliation”

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Celebrating75Years Strengthening Lives for Purpose, Service, and Leadership

Pepperdine University is a Christian university committed to the highest standards of academic excellence and Christian values, where students are strengthened for lives of purpose, service, and leadership.

Malibu | West Los Angeles | Westlake Village | Irvine | Encino | Silicon Valley | Washington, D.C. Heidelberg | London | Florence | Buenos Aires | Lausanne | Shanghai

www.pepperdine.edu/75th

24255 Pacific Coast Highway Malibu, California 90263

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Palmer Center for Entrepreneurship and the Law 310.506.4681

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Nootbaar Institute on Law, Religion, & Ethics 310.506.7635

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