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Vol. 34, No. 1

Fall 2014

Supreme Court Justice Samuel Alito Speaks at 41st Annual Law Dinner

JANET KERR Architect of Palmer Center, popular professor retires, leaving 30-year legacy.

PARRIS INSTITUTE FOR PROFESSIONAL FORMATION Million-dollar gift establishes unique center for professional formation of first-year law students.

TEN YEARS AT NUMBER ONE Straus Institute for Dispute Resolution celebrates 10 years at the top of the U.S. News & World Report rankings.

Whose Life Will You Change? change lives. give today.

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

Vol. 33, No. 1  Fall 2014 Pepperdine Law, the magazine of Pepperdine University School of Law, is published by Pepperdine University.

Pepperdine Law STAFF Tom Inkel (JD ’01)


Keith Lungwitz

Art Director

Vincent Way

Copy Editor

Ron Hall (’79)


Jill McWilliams

Production Manager

Gareen Darakjian

Contributing Writers

Kimberly Robison (’10)

Web Developer





Shelley Ross Saxer

Vice Dean

Stephanie Buckley

Associate Vice Chancellor

Al Sturgeon (JD ’11)

Dean of Students

Peter Robinson  Associate Dean, Business and Finance Robert Pushaw  Associate Dean, Research and Faculty Development Assistant Dean, Information Services

Michael Hom

Assistant Dean, Career Development

Shannon Phillips  Assistant Dean, Admissions, Student Information, and Financial Services



Million-dollar gift establishes unique center for professional formation of first-year law students.



Cutting-edge clinical programs help Pepperdine gain seventh-place ranking in country for experiential learning.


Catherine L. Kerr  Assistant Dean, Library Phillip C. Bohl (JD ’92)

Justice Alito’s address was the second law dinner appearance by a Supreme Court justice in six years.


Timely symposia and professor Gregory McNeal keep Pepperdine in the news regarding issues of national security.


Pulitzer Prize-winning author and professor Ed Larson provides an excerpt from his upcoming book.

Rick Gibson (MBA ’09) Chief Marketing Officer and Associate Vice President for Public Affairs and Church Relations Matt Midura (’97, MA ’05) Associate Vice President for Integrated Marketing and Communications Megan Boyle  Executive Director of Integrated Marketing Communications Ali Taghavi  Director of Communications, Integrated Marketing Communications



Professors Donald E. Childress III and Babette Boliek share recent research.


Professor Michael Helfand’s popularity with students and prodigious research combine to embody a Pepperdine ideal.

Ed Wheeler (’97, MA ’99) Director of Interactive Allen Haren (‘97, MA ’07) Director of Digital Media Please direct address changes, letters to the editor, comments, and requests to:


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


Popular professor, architect of Palmer Center, leaves behind 30 year legacy.


p: 310.506.4492  f: 310.506.7440

Straus Institute for Dispute Resolution celebrates a decade at the top.



Advancement and Alumni Relations


Career Development


Global Justice Program


Off-Campus Education


Straus Institute for Dispute Resolution


Geoffrey H. Palmer Center for Entrepreneurship and the Law


Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics


Clinical Programs



In Every Issue

2 Message from the Dean

24 Faculty Activities

46 Class Actions




Dear Friends of Pepperdine University School of Law:

is essential that we transmit the values of our profession to another generation. Shout down the naysayers! They are ignoring the world-changing contributions of generations of lawyers. Let us be the voices for the future of a noble profession.

At a time when so many people— including some in very high places—are questioning whether a law degree is worth it and advising young people not to go to law school, I say emphatically that the advice is wrong and the degree is definitely worth it. My life would have been so different had I decided those many years ago not to go to law school. I am so grateful for those who advised me to do so even at a time when it seemed like a highly unlikely choice for a woman. I suspect all of you who have graduated from law school have a similar story and are likewise grateful to those who encouraged and helped you. PEPPERDINE LAW

Pepperdine lawyers are leading rich lives of purpose, service, and leadership—all enabled by their law degrees from the School of Law. The law degree is earned after training in analytical skills, problem solving, peaceful dispute resolution, and the importance of doing justice in a world that needs these abilities so acutely. Where would we be without the lawyers throughout history who have forged nations, served clients and communities, promoted the rule of law, calmed turbulent controversies, defended folks in their darkest hours, and served families in times of turmoil? The list goes on and on, but the point is clear. The law is a noble profession. Law school is the path to a profession called to serve humanity and build institutions that will be the bulwark of a humane and civilized society. The problems that lawyers of the future will be called upon to solve will be more complex and more intractable than those our generation has confronted. We must all be spokespersons for the importance of continuing to attract to law school the kind of people who will serve the nation and the world in the ways that lawyers always have. Just as others advised and encouraged us to go to law school, it 2

We have had a truly extraordinary year at Pepperdine Law. Our students continue to excel in the classroom and in a host of cocurricular activities. The Pepperdine tradition of winning trial and appellate advocacy competitions continues at a championship pace. Our Ninth Circuit Appellate Advocacy Clinic students won relief for a client in a habeas case in the Ninth Circuit. The faculty is engaged in scholarship at the cutting edge of emerging legal issues. The Global Justice Program remains focused on assisting the courts in Uganda and in providing legal training in other parts of the world. The Palmer Center has plans for exciting new directions in entrepreneurship, real estate, and the media. The Straus Institute is still number one among dispute resolution programs in the country and has initiated a very distinguished LLM program in international commercial arbitration. In response to the calls for more experiential learning, we are increasing and strengthening our clinical programs, externships, internships, and other “skills-based” curricular offerings. In short, the School of Law is out in front of a challenging legal education landscape as evidenced by our significant jump in the U.S. News & World Report and other rankings this year.

The law is a noble profession. Law school is the path to a profession called to serve humanity and build institutions that will be the bulwark of a humane and civilized society. —Deanell Tacha Finally, my deepest gratitude to those alumni and friends who have been so generous and given so much to help us in our work. Carrol and Rex Parris gave us the resources to begin this fall the Parris Institute for Professional Formation, which will be a leader in the nation in exposing our 1Ls to the values, expectations, and aspirations of good legal professionals. The Parrises have provided $1 million in matching funds in order for us to raise an additional $1 million. I hope that you might consider helping us with that match. The new lockers that many of you purchased have been installed and are a wonderful addition. The Fridolin Charitable Trust made possible very important public interest fellowships. The Janet Kerr Scholarship Fund is growing through the generosity of many of you whose lives she touched. Several other significant gifts will be announced in the coming months. It is a privilege to serve this great law school and University. Pepperdine Law is more than a law school. It is a community. It is a family. I hope you will join me in urging interested and promising young people to ignore the rhetoric and choose to go to law school— preferably at Pepperdine, but anywhere! They will be responding to a noble professional calling and will be grateful—as we have been—that someone advised them to go to law school. In service, Deanell

Andre Birotte, Jr. (JD ’91) Confirmed as Federal District Judge


Last summer, Pepperdine School of Law alumnus Andre Birotte, Jr., was sworn in as a district judge of the U.S. District Court for the Central District of California. Birotte’s July confirmation was the unanimous decision of all 100 senators. Birotte was the third School of Law alumnus to join the federal bench in two years. Birotte has been the U.S. attorney for the Central District of California since 2010. He was the first African American to serve in that post. Prior to joining the U.S. Attorney’s office, Birotte served as the inspector general for the Los Angeles Police Department, as an associate at the Los Angeles law firm of Quinn Emanuel Urquhart Oliver & Hedges, and as a Los Angeles county public defender. Birotte received his undergraduate degree in 1987 from Tufts University. While a law student, he served as law clerk and intern at two law firms, the Office of the U.S. Attorney for the Central District, and the San Diego County Public Defender’s Office. Appointed under Article III of the Constitution, federal district court judges are nominated by the president, confirmed by the Senate, and serve lifetime appointments upon good behavior. The U.S. District Court for the Central District of California covers seven of the most populous counties in Southern California. Birotte joins alumna Judge Beverly Reid O’Connell (JD ’90) on the bench of the Central District of California, while Judge Jennifer A. Dorsey (JD ’97) is a United States district judge of the District Court for the District of Nevada. 3

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Supreme Court Justice Alito Speaks at 41st Annual Law Dinner By Tom Inkel

On Saturday, March 12, 2014, the Honorable Samuel A. Alito, Jr., associate justice of the Supreme Court of the United States, delivered the keynote address at Pepperdine University School of Law’s 41st annual dinner. PEPPERDINE LAW

More than 700 guests attended the event, which took place at the Hyatt Regency Century Plaza in Los Angeles, California. Alito is the second Supreme Court justice to speak at the annual dinner in six years, following Chief Justice John Roberts in 2008.

During the far-ranging conversation with Hiepler, among Alito’s most heartfelt remarks was encouragement for current and prospective law students. Despite the tough economy and competitive job market, Alito advised students to stay the course.

Alito’s remarks came in the form of an interview conducted by School of Law alumnus and Board of Visitor member Mark O. Hiepler (JD ’88). Topics ranged from a personal look at the Supreme Court confirmation process to entertaining facts about life as a justice. The event capped a full Pepperdine weekend for Alito, who— along with senior judge Stephanie K. Seymour, United States Court of Appeals for the 10th Circuit, and chief judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit—earlier judged the final round of the Vincent S. Dalsimer Moot Court Competition, one of the School of Law’s annual intra-school moot court competitions.

“Our country needs lawyers,” he said. “The Constitution and the law is one of the things that holds us together.”


Justice Alito joins a lengthening list of Supreme Court justices who have spoken at the School of Law dinner, including the late Byron White, retired justice Sandra Day O’Connor, and current justices Ruth Bader Ginsburg and Clarence Thomas. Like fellow associate justice Antonin Scalia, Alito has taught courses at the School of Law. In their remarks, both School of Law dean Deanell Tacha and Pepperdine president Andrew K. Benton highlighted the fundamental role of skilled, well-grounded

Justice Alito receives the Robert H. Jackson Award from Dean Tacha.

Dean Tacha greets the crowd.

R. Rex and Carrol Parris

Chief judge Alex Kozinski, Justice Alito, and senior judge Stephanie K. Seymour question a law student participating in the Vincent S. Dalsimer Moot Court Competition.

lawyers in the American legal system and way of life. Tacha noted that despite the current legal education climate, Pepperdine remains particularly strong, one of only 25 law schools in the country which increased in applications at a time when nearly 200 experienced significant drops. Also during the annual dinner, Tacha announced a gift of $1 million from Carrol and R. Rex Parris toward the establishment of the Parris Institute for Professional Formation. The institute, which launched in Fall 2014, is dedicated to the professional development of first-year law students at Pepperdine. The gift from Carrol, a Seaver College Board of Visitors member, and Rex, mayor of Lancaster, California, and partner of R. Rex Parris Law Firm, included a commitment for an additional $1 million in matching funds.

In the honors portion of the event, Tacha presented the Robert H. Jackson Award to Alito. Judges Seymour and Kozinski were recognized with the Vincent S. Dalsimer Dean’s Award. Professors Kristine Knaplund and Michael A. Helfand were named 1L Professors of the Year, Professor Steven M. Schultz as 2L/3L Professor of the Year, and Otto Cipola (‘83) as Preceptor of the Year. The School of Law also presented the inaugural Dean’s Award for Excellence in Scholarship to Helfand and Professor Donald “Trey” Childress. “The School of Law Dinner each year underscores our commitment to the law school as a community of legal professionals dedicated to forming lawyers who will serve their clients, communities, the nation, and the world,” said Tacha. “We join together 5

in hospitality and celebration to recognize the achievements of students, faculty, and alumni. We welcome distinguished guests and make them part of our community. This year the very thoughtful and personal discussion between Justice Alito and Mark Hiepler gave all of us a rare opportunity to see the many dimensions of the justice’s interests, talents, and personality. He modeled for us the ideal of the lawyer as servant, citizen, family member, and friend. We also joined in gratitude to Carrol and Rex Parris for their generosity in providing a transformational gift which enabled the School of Law to initiate this fall the Parris Institute which will be a leader in legal education in integrating professionalism into the law school curriculum. The evening was a highlight in all respects.” L A W. P E P P E R D I N E . E D U



The Parris Institute FOR PROFESSIONAL FORMATION By Tom Inkel


mid the useful varieties of mission and emphasis among American law schools, the formation of competent and committed professionals deserves and needs to be the common, unifying purpose. A focus on the formation of professionals would give renewed prominence to the ideals and commitments that have historically defined the legal profession in America. —William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (2007)



DURING THE 41ST ANNUAL SCHOOL OF LAW DINNER ON MARCH 12, 2014, dean Deanell Reece Tacha announced a gift of $1 million dollars toward the establishment of the Parris Institute for Professional Formation, dedicated to the professional development of first-year students at the School of Law. The gift from Carrol and R. Rex Parris included an additional $1 million pledge in matching funds. The institute launched in August 2014, serving the Class of 2017. “We are so deeply grateful to Carrol and Rex Parris for their generous gift that will allow Pepperdine Law to serve our students as we prepare them for their legal professional lives in a rapidly changing legal environment,” Tacha said. “The Parris gift enables Pepperdine to model the highest ideals of our profession in ways that will inspire and challenge our students to emerge as leaders in the profession.” R. Rex Parris is mayor of Lancaster, California, and a partner of R. Rex Parris Law Firm, which he founded in 1985 with his wife Carrol, a Seaver College Board of Visitors member. Among Rex’s successes as a trial attorney are the first $1 million verdict in California’s Kern County and a record-breaking $370 million defamation jury verdict in Los Angeles. As a mayor, Rex has attracted national attention by overseeing a dramatic drop in gang violence and implementing such initiatives as a major redevelopment of the downtown and the conversion of all city municipal buildings to solar power. The Parris Institute for Professional Formation has three major components. First-year students begin their law school careers with a one-week Introduction to Professional Formation course that will focus on the fundamentals of legal reading, reasoning, writing, and ethics. Sessions include assessment of writing ability and direct pedagogical experiences with professors. A oneday capstone session follows one month later. The second component is the Professional Life Series for 1Ls, a series of four highly interactive and engaging events throughout the year that complement the professionalism course, connect students with mentors, and encourage professional behavior. The sessions cover topics such as professional health, professional materials, interviewing, and networking. During this phase, students work closely with their preceptors, practicing attorney mentors.

Finally, at the end of the school year, the Pepperdine Awards Program celebrates the accomplishments of students who best exhibit professionalism. Outstanding students receive “Parris Awards” in recognition of their contributions to professional formation in the law school community, and the “Pepperdine Award” is given to the 3L who best embodies the values of the Pepperdine University School of Law. Dean of students Al Sturgeon (JD ’11) directs the Parris Institute for Professional Formation. He works closely with both assistant professor Steve Schultz, who manages the Academic Success Program and a new professionalism course for 1Ls, and with assistant dean of career development Michael Hom, who conducts a professional formation series for 1Ls in conjunction with the Preceptor Program. They are supported by the Parris Institute’s assistant director Danny DeWalt. “The Parris Institute will offer our students unique opportunities to examine and refine lawyering skills, focus on ethical decision making, and be exposed to the many ways that lawyers use their legal education,” says Tacha. “Our students will be called to envision their lives as lawyers as opportunities to solve problems, shape policy, CARROL and R. REX PARRIS assist those less fortunate, bring positive change to communities and the world, and model the rule of law at work. Both nationally and globally, great lawyers will be needed far into the future, as they have been in the past, to help clients and the world address the array of personal conflicts, societal challenges, and economic and public policy opportunities that will await them over their careers. The Parris Institute seeks to equip Pepperdine lawyers for these unknown but exciting career paths.” The Parris Institute for Professional Formation unifies and enhances other School of Law “practice-ready” initiatives like the alumni-mentoring Preceptor Program and Pepperdine’s nationally recognized clinical programs. The institute and related programs are a concerted effort to train law students not only to “think like lawyers,” but practice being lawyers as well. National Jurist recently ranked Pepperdine’s law school as seventh in the country for experiential learning, the highest ranking by a California law school.


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NEWS & EVENTS and to promote better outcomes through the juvenile justice system. Students receive intensive training in peacemaking and dispute resolution, and they assist in teaching and training incarcerated teens in these skills and virtues. A similar new offering for fall 2014 will be the Criminal Justice Dispute Resolution Practicum, in which students learn and help teach peacemaking and dispute resolution to inmates in the Los Angeles County Jail. The Straus Institute for Dispute Resolution launched a new employment mediation clinic in partnership with California’s Department of Fair Employment and Housing (DFEH), the largest state civil rights agency in the country. Senior attorney-mediators from the DFEH serve as clinic faculty and oversee students’ preparation of DFEH cases for mediation under the Fair Employment and Housing Act. While participating in the clinic, students also gain practical experience with pretrial mediation and settling employment discrimination complaints.

Practice to Practice Pepperdine at the Forefront of Experiential Learning By Tom Inkel

In March 2014 National Jurist ranked Pepperdine University School of Law seventh in the country for “experiential learning” or hands-on

requirements for admission to the state bar. In advance of the California Bar’s new standards, the School of Law faculty recently voted to adopt new graduation requirements, including 50 hours of pro bono work and 15 units of professional skills courses.

training through opportunities such as The rankings announcement and curriculum clinics and externships. This was the changes came in the midst of an already best showing of any California law school. The new rankings reflect a shift in legal education to provide law students with more core competency skills before graduation. “Due to the economic climate and client demands for trained and sophisticated practitioners fresh out of law school, fewer and fewer opportunities are available for new lawyers to gain structured competency training early in their careers,” states a 2013 report by the State Bar of California’s Task Force on Admissions Regulation Reform, before recommending new clinical PEPPERDINE LAW

fruitful year for experiential learning at Pepperdine. Under the leadership of dean Deanell Tacha, who sits on the California Bar’s task force, and Jeff Baker, professor and director of clinical education, Pepperdine launched a number of new clinics and practicums and provided significant support for students exploring these options. NEW CLINICS AND PRACTICUMS In the Juvenile Justice Dispute Resolution Practicum, students work with teens in custody at the Los Angeles County Sheriff’s facility at Camp David Gonzalez to teach peacemaking and dispute resolution as a part of coordinated efforts to reduce recidivism 8

The Community Justice Clinic, launching in fall 2014, provides pro bono legal services for nonprofits and community and religious organizations, especially those who are working to promote justice and development in vulnerable or poor communities. Students assist with both corporate matters (formation, governance, and compliance matters) and advocacy (research, policy, litigation, negotiation, and organization matters). The new Federal Criminal Practice Practicum, initiated by alumna and federal district judge Beverly O’Connell (JD ’90), is an innovative program where students rotate through field placements with the U.S. Attorney, Federal Public Defender, and U.S. District Court in a semester. These new clinical offerings come on the heels of earlier clinics that continue to prove highly successful. For example, the Ninth Circuit Appellate Advocacy Clinic celebrated its one-year anniversary with another remarkable win by student advocates. Students drafted briefs and argued the case of an actual California state prisoner who challenged the conditions of his indefinite solitary confinement and inability to seek release to the general prison population through the “debriefing process.” The district court had dismissed all of his claims and denied him leave to amend his complaint.

STUDENT SUPPORT “Pepperdine gave out close to $90,000 in stipends to 20-30 students doing public interest work during the summer,” Baker says. “In this last year, we have had over 200 externship placements for students. Even discounting repeat placements, I estimate conservatively that we had 150 students in field placements for credit through the fall, spring and summer.” To support these efforts, the School of Law has created a new position, director of externships. The school hired Terry Adamson, professor and formerly the school’s Distinguished Jurist in Residence, to serve as the first director. The School of Law is also greatly expanding space for the clinical program, including vastly expanded student work areas, confidential client meeting rooms, faculty and staff offices, and a classroom dedicated to clinics, externships, and practicum courses. THE BIG PICTURE At the School of Law, experiential learning is one aspect of a general, deep-rooted focus on mentoring and results-focused dispute resolution at Pepperdine. Other national rankings such as the 2013 Princeton Review continue to recognize the Pepperdine law faculty as among the most accessible and competent in the country. The recent launch of the Parris Professionalism Institute for all first-year law students addresses the fact that “practicing to practice” requires more than legal skills. The Straus Institute for Dispute Resolution, which just celebrated its 10th consecutive year as the nation’s topranked dispute resolution program, reflects that an awareness of the many paths to resolving disputes. “At Pepperdine, we have two foundational goals for experiential education,” says Baker. “We advance students’ formation as excellent, ethical lawyers, and we do this through world-class practice that advances our missions of service and justice. Through clinics, externships, practicums, public interest programs, and pro bono, we can promote justice, increase access to justice, and generate economic development, while empowering law students for the profession.”

Pepperdine Law Welcomes Three Real Estate Elites to Campus By Tom Inkel Rick Caruso

David Feingold, a senior real estate finance executive with over 30 years of experience in highly structured mortgages and asset management, has joined Pepperdine University School of Law as the new executive director of the Palmer Center for Entrepreneurship and the Law. Feingold succeeds the Palmer Center’s founding director, Professor of Law Emeritus Janet Kerr, who oversaw the center’s rapid evolution from its 2000 launch to a fully realized Geoffrey Palmer entrepreneur skills program endowed by alumnus and Los Angeles real estate developer Geoffrey H. Palmer (JD ’75). Before coming to Pepperdine, Feingold was a managing director at Emigrant Realty Finance and Citicorp Real Estate, managing portfolios in excess of a billion dollars. Professor Grant Nelson, the William H. Rehnquist Professor of Law and interim director of the Palmer Center during the past year, describes Feingold as an “an outstanding appointment who will bring increased attention to the center among real estate professionals and academics alike. The law school is so very fortunate to have secured his services.” The hiring of Feingold was a milestone during an exciting year for entrepreneurship and real estate. Nelson and Dean Tacha were also able to facilitate on-campus presentations by Palmer and Rick Caruso (JD ’83), both School of Law alumni and nationally known real estate entrepreneurs. Palmer spoke to students on February 4. His company, G. H. Palmer Associates, currently owns a portfolio of over 9,200 apartments in Southern California. His presentation gave the audience unprecedented insight into his business and success, achieved even during some of the most challenging market conditions in Los Angeles history. Only weeks after Palmer’s visit came the presentation by Caruso, founder and chief executive officer of Caruso Affiliated, one of the largest privately held real estate companies in the United States. Caruso also serves as a member of the School of Law Board of Visitors. On February 12, Caruso spoke to students packing the Henry J. and Gloria Caruso Auditorium—named for his parents—about how he has adapted the concept of “shopping mall” to meet changing economic circumstances, particularly online competition. “The students were overwhelmingly enthusiastic about [Palmer and Caruso’s] presentations,” Nelson says. “Dozens remained after the speeches to seek advice from Palmer and Caruso. Pepperdine is indeed blessed to have these two highly successful and nationally renowned real estate developers as our alumni. Their close connection to the School of Law clearly enhances the school’s growing reputation as one of the nation’s leading Christian law schools.” 9

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he laws that protect nations and their citizens were among the world’s most

hotly debated topics last year, fueled by incidents ranging from Edward Snowden’s revelations about the National Security Agency to the continued proliferation of drones as an instrument of war. As the debate intensified, Pepperdine University School of Law made its voice heard. The nationally recognized scholarly activities of School of Law professor Gregory S. McNeal, the Future of National Security Law symposium, and a keynote by former secretary of homeland security Michael Chertoff at the annual William French Smith Memorial Lecture have all helped place Pepperdine on a rapidly evolving map.


PROFESSOR McNEAL Awarded Prestigious Grant for Article of the Year This year, the Carthage Foundation named Pepperdine University the recipient of a $165,000 grant to support the research of McNeal, associate professor of law. The grant will fund McNeal’s research for a book about America’s use of lethal force against suspected terrorists, or what has come to be known as the practice of “targeted killing.” The research will build upon previous work that McNeal conducted for his Georgetown Law Journal article, “Targeted Killings and Accountability” which received the 2013 Article of the Year award from the American National Section of the International Association of Penal Law. McNeal’s article was a comprehensive examination of the United States’ practice of targeted killings. Not only did the article provide the first qualitative empirical accounting of the targeted killing process, but it also provided an analytical framework to assess accountability for targeted killings and suggested potential reforms that could make the process more accountable. The article has caught fire in scholarly circles, having already been cited by dozens of scholars. “My goal when writing this article was to provide a bit of insight and clarity about the legal standards for targeted killings and potential political ramifications of the tactic,” said McNeal. “I’m both honored and humbled to have been selected by the American Section of the International Association of Penal Law to receive this award.” 10

McNeal is an expert in international security with an active scholarly agenda focused on national security, warfare, surveillance, and new technologies. He testified before Congress twice on matters related to national security and frequently consults with elected officials regarding proposed legislation. He recently consulted with and contributed to the development of two U.S. military field manuals aimed at preventing harm to civilians in conflict. He teaches criminal law, criminal procedure, and courses related to national security law and international affairs. He was recently added as a coauthor on the casebook Anti-Terrorism and Criminal Enforcement and has an article forthcoming in the Harvard Journal of Law and Public Policy. ANNUAL LAW Review Symposium Examined the Future of National Security Law On Friday, April 4, 2014, over 120 people attended Pepperdine Law Review’s annual symposium in Malibu, California, with dozens more viewing the sessions via live Internet streaming. The event, entitled “The Future of National Security Law,” featured a dozen guest panelists with backgrounds in military law, diplomacy, and intelligence. The featured speaker was former general counsel of the Central Intelligence Agency John Rizzo. The symposium’s four sessions were “Separation of Powers and the Future of National Security Law,” “International Law and the Future of American National Security Law,” “A Conversation About Whether the

Professor Greg McNeal

2001 Authorization for Use of Military Force Should Be Renewed,” and “The Future of American National Security Surveillance.” Commentators discussed whether the United States’ separation-of-powers system is under stress after more than a decade of conflict against al-Qaeda and associated forces, and how America’s transnational conflict against non-state actors had placed significant strain on international human rights law and the law of armed conflict. The afternoon closed with a sweeping look at surveillance, big data, and the evolution of related laws, such as the controversy and challenges that flowed from former NSA contractor Edward Snowden’s leaking of stolen classified documents. John Rizzo’s remarks came during the luncheon. Rizzo had a 34-year career as a lawyer at CIA, including serving as acting general counsel of the CIA from late 2001 to late 2002 and from mid-2004 until late 2009. In the post-9/11 era, he helped create and implement the full spectrum of aggressive counterterrorist operations against alQaeda, including the so-called “enhanced interrogation program” and lethal strikes against the al-Qaeda leadership. He is the author of Company Man, a look at his years with the agency. During the symposium, he commented on a range of topics, from the CIA interrogation program—”To the extent that [the CIA] got hits, we deserved them”— to Edward Snowden, about whom Rizzo said that he sees no evidence that Snowden is a “traitor.”

MICHAEL CHERTOFF Delivered Seventh Annual William French Smith Memorial Lecture The School of Law hosted its annual William French Smith Lecture at the Ronald Reagan Library in Simi Valley, California, on November 1, 2013. The topic of this year’s lecture was “Big Data as Big Brother.” Following a keynote by the Honorable Michael Chertoff, secretary of the U.S. Department of Homeland Security from 2005 to 2009, Chertoff participated in a conversation with School of Law dean Deanell Reece Tacha and professors Gregory S. McNeal and Victoria L. Schwartz. The lecture and conversation revolved around Chertoff’s insights on privacy, including not only the impact of recent government action, but the unintended rise of what he called an “informant society.” “What about what we do to each other?” Chertoff said. “If you look at police states, they became totalitarian not simply because the police themselves were able to collect information, but because they turned the citizens into informants.” He noted that a “boggling” amount of once-private conversation and personal information is now being recorded and stored by private entities such as social media and third-party services. Given that most existing privacy laws only regulate conduct by the government, the situation raises the question of whether privacy for that data has now been surrendered, and in fact, can then be used by the government. As secretary of the U.S. Department of Homeland Security from 2005 to 2009, Chertoff directed counterterrorism and border security efforts. He is also widely recognized as having transformed the Federal Emergency Management Agency into an effective organization following Hurricane Katrina.


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School of Law Hosts Transnational Forum Shopping Symposium By Gareen Darakjian

Last September the School of Law, along with the U.S. Chamber Institute for Legal Reform, brought together prominent academics, legal practitioners, and business leaders to discuss three key issues in transnational litigation. Throughout the daylong event, the esteemed group discussed the future of Alien Tort Statute (ATS) litigation after Kiobel, the need for federal legislation governing the recognition of judgments rendered in foreign countries, and global forum shopping. The symposium closed with a fourth panel focused on strategic business planning in light of the preceding topics. Kathleen Sullivan, partner at Quinn, Emmanuel, Urquhart & Sullivan, who successfully represented Royal Dutch Petroleum (Shell) before the U.S. Supreme Court in Kiobel, discussed the Kiobel decision and related developments in ATS litigation, which served as an introduction for the first panel: “The Future of Human Rights Litigation After Kiobel.” Panelists addressed the implications of the Supreme Court’s decision, including what kinds of U.S.-related “contacts” might be considered sufficient to allow future ATS claims in the United States, as well as the decision’s effect on state common-law claims. Moderated by Daniel Fisher, senior editor at Forbes, the panel included insights from John Bellinger III, partner at Arnold & Porter and former U.S. State Department legal adviser; and Roger Alford, professor at Notre Dame Law School and author of several articles on the ATS, including “Transnational Torts After Kiobel” (forthcoming).

discussed how the current patchwork of state laws regarding recognition and enforcement of foreign judgments leads to legal and strategic challenges for multinational businesses. The discussion focused on recent attempts to enforce abusive or fraudulent foreign judgments in the United States and the concurrent need for federal legislation to modernize and create uniformity in this area of law. The panel featured moderator Bellinger, as well as Linda Silberman, a professor at the New York University School of Law and coreporter for the ABA’s draft legislation on foreign judgment recognition; Ronald Brand, a professor at the University of Pittsburgh School of Law; and Stephen Burbank, a professor at the University of Pittsburgh School of Law. The luncheon keynote was delivered by Michael B. Mukasey, attorney general of the United States (2007-2009) and former federal judge, who discussed transnational litigation, as well as current national security issues in a conversation with dean Deanell Tacha. In a discussion of “Forum Shopping: A Global Business,” the panel focused on the increasing tendency of plaintiffs to bring lawsuits abroad that in previous years

The symposium’s second panel, “Tort Tourism: Responsible Enforcement of Foreign Judgments,”



would have been filed in U.S. courts. Sometimes these foreign lawsuits are brought in tandem with litigation in the United States or in international tribunals. Key examples include litigation against Shell in both the United States (Kiobel) and the Netherlands, and litigation against Chevron in Ecuador accompanied by arbitration in The Hague and enforcement actions in the United States, Canada, Brazil, and Argentina. The panel also addressed plaintiffs’ responses to securities-related claims after the Supreme Court limited the extraterritorial reach of U.S. securities laws in Morrison. Featured panelists included Richard Painter, professor, University of Minnesota Law School; George Conway, partner, Wachtell, Lipton, Rosen & Katz; Chris Whytock, professor, University of California, Irvine School of Law; and moderator Trey Childress, professor at Pepperdine School of Law. The symposium’s final panel was titled, “Business Planning: Doing Good While Doing Well.” Panelists addressed best practices for engaging in positive corporate citizenship worldwide. The panel discussed the latest developments in corporate social responsibility and modern business practices for constructively engaging in developing nations, where the potential for international litigation is high.



What would a legal system look like if based on the concept of “agape,” or Christian love? The Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics tackled the topic in the institute’s annual conference, held February 7-8, 2014 in Malibu, California. The conference packed 16 presentations, panels, and breakout sessions into 36 hours and featured speakers and panelists from more than 30 institutions and organizations. Nootbaar Institute director and Pepperdine law professor Robert F. Cochran Jr. describes the practical applications of agape love as being a focus on the independent flourishing of citizens. “Agape love is concerned with what is best for the whole person, trying to

make them the best that they can be,” he explains. “Laws requiring dependence of citizens are not loving laws.” The concept of agape provided the catalyst for discussion, but the event—cosponsored by the Diane and Guilford Glazer Institute for Jewish Studies—featured many multireligion panels. “Other theological and moral traditions also wrestle with the relationship between law and religious concepts of love, including Judaism’s hesed and ahava, Islam’s rahman, and Hinduism’s kama,” notes Cochran. Participant feedback was effusive. “It was encouraging to learn that many of my colleagues in the legal academy believe that law should be organized on the basis of agape love,” one wrote. “As a result, there is a real basis to believe that the Christian value of agape love can one day have a more significant impact on American laws.” Law and the Bible have been a personal focus for Cochran. 13

Over the last two years in particular, Cochran has had several opportunities to explore the intersection of Christianity and the law in a more tangible way. In 2013 he coauthored the book Law and the Bible: Justice, Mercy, and Legal Institutions (InterVarsity Press), with David VanDrunen, professor of systematic theology and christian ethics at Westminster Seminary California. A textbook produced with John M. A. DiPippa and Martha M. Peters entitled The Counselor-at-Law: A Collaborative Approach to Legal Interviewing and Counseling (Lexis Law Publishing, 2014, 3rd. ed.) focuses heavily on the role of ethics. Recently, his article “Modern Legal Traditions: United States” was featured in Oxford Encyclopedia of the Bible and Law (2014). In addition to his regular courses at Pepperdine in such areas as torts and family law, Cochran recently taught a course about substantive law in the Bible at a theological college in British Columbia. L A W. P E P P E R D I N E . E D U


The Return of George Washington: Uniting the States, 1783-1789 An excerpt from Pulitzer Prize-winning author Edward Larson’s upcoming book


n a chilly spring morning in April 2014, I sat on Mount Vernon’s broad front piazza watching the sun rise slowly over the Potomac River. George Washington’s upstairs bedroom window was over my left shoulder and his east-facing office window stood directly behind me. Washington would have seen much this same view 225 years earlier, knowing it might be a long time before he observed it again. The American people had called him to the presidency and he was preparing to leave his beloved Mount Vernon plantation for New York on April 16, 1789. Due to private preservation efforts and public land-use restrictions, this vista over the Potomac, the one that Washington most loved and built his piazza to frame, survives virtually unchanged in the midst of Northern Virginia’s urban sprawl.



As an inaugural Fellow at the Fred W. Smith National Library for the Study of George Washington, with a residency on the grounds of Mount Vernon, I was able to enjoy this and other scenes on Washington’s plantation many times over the course of a year. The view from the piazza became my favorite too, especially at sunrise in the spring when flowering trees and soft green leaves give off a warm glow in the early morning light. It was obvious why Washington was reluctant to leave Mount Vernon for public service in a job that he neither sought nor wanted. The words that Washington sent six months earlier to fellow Virginian James Madison urging him to serve in the new federal government applied equally to himself, however. Supporters of the new Constitution and the union it created, he had implored Madison, forgetting personal considerations, must combine their collective efforts through service in the new government to avert the “great national calamities that impended” without it. Over the years since the United States secured its independence in 1783, Washington had come to believe that the country faced as grave a threat from internal forces of disunion in the mid-1780s as it had from external ones of tyranny in the mid-1770s, when he accepted leadership of the patriot army at the outset of the Revolutionary War. Now his country again called on his service, this time as the elected leader of the world’s first continental republic. Countless books tell the story of Washington as commander-in-chief of the Continental Army during the American Revolution, and nearly as many relate the history of his role as the first president of the United States. Indeed, books about Washington could fill a library. They fill a bookcase in mine. Few of them focus on the six years between his wartime and presidential service, which is the subject of this one. Even the finest full biographies of Washington—from Douglas Southall Freeman’s six-volume classic of the late 1940s and early 1950s through James Thomas Flexner’s masterful four-volume series of the late 1960s and early 1970s to Ron Chernow’s superb 2010 Washington: A Life, all Pulitzer Prize winners—devote

the interlude between his military tenure and presidential terms mostly to presenting his life as a Virginia planter. Moreover, when biographers reach the Constitutional Convention, over which Washington presided, they typically present him as a stiff, silent figure who mainly contributed his prestige and dignity to the proceedings. The standard narrative then has him retiring to Mount Vernon through the ratification debates and first federal election until called to the presidency. With this book, I retell the story from Washington’s resignation as commander-inchief through his inauguration as president. Not meaning to diminish the importance of his domestic life during this period, I stress his crucial role as a public figure and political leader during these critical years between the end of the Revolutionary War in 1783 and the start of the federal government in 1789. Many accounts, such as David Hackett Fischer’s riveting Washington’s Crossing, present Washington as The Indispensable Man (as Flexner famously called him) during the Revolutionary War. Others show his similar centrality as president, perhaps most notably Forrest McDonald’s The Presidency of George Washington. I argue that Washington was equally important—equally indispensable—during the interval between these two better-known stages of his life. Often working behind the scenes but still very much in the public imagination, he helped to bind the states into a single federal republic. This period in Washington’s public life merits as much attention as those that preceded and followed it. It built on what came before and laid the foundation for what followed. From 1775 until his death, Washington was the indispensable American. As Washington understood matters, the immediate threat to America during the 1780s flowed from the weakness of the central government. More than anyone, he led the effort to reform it. “The honor, power, and true interest of this country must be measured by a continental scale,” Washington wrote in 1783. “Every departure therefrom weakens the Union, and may ultimately break the band, which holds


us together.” Supplementing his efforts to strengthen the central government, he worked to link the country’s economy, particularly by joining the emerging regions west of the Appalachian Mountains to the settled ones on the coast by a navigable waterway. “Unless we can connect the new states, which are rising to our view in the regions back of us, with those on the Atlantic by interest,” Washington warned in 1785, “they will be quite a distinct People; and ultimately may be very troublesome neighbours to us.” He worried that America, far from serving as a beacon of enlightened liberty and republican rule, was becoming “contemptable in the eyes of Europe.” By 1786, Washington privately vowed to do all that he could “to avert the humiliating, and contemptible figure we are about to make, in the annals of mankind.” Washington’s vision and continuing service led the way toward the new American union that endures to this day.

The author of nine books and nearly 100 published articles, Edward Larson teaches, lectures, and writes about issues of law, politics, science, and medicine from an historical perspective. He won the Pulitzer Prize for his 1997 book, Summer for the Gods: The Scopes Trial and America’s Continuing Debate over Science and Religion. The recipient of several awards for excellence in teaching, Larson has taught courses in property and health care law for over 20 years at the University of Georgia and Pepperdine University. He earned a BA from Williams College, a JD from Harvard, and a PhD in the history of science from the University of Wisconsin-Madison.

L A W. P E P P E R D I N E . E D U


 Faculty Essay

Suppose that you were a lawyer

Escaping Federal Law in Transnational Cases The Brave New World of Transnational Litigation

injured in a foreign country by

By Donald Earl Childress III

and law-favorable forum would be to

representing a plaintiff who was a defendant arguably subject to personal jurisdiction in the United States. Where would you advise your client to bring suit? Of course, that decision would be made by comparing the substantive and procedural laws of various jurisdictions—such as the foreign place of injury with the place of domicile of the defendant—to

For these reasons, a plaintiff would be expected to choose a U.S. forum to bring suit, if possible as a matter of jurisdiction, even in cases where the harms complained of occurred abroad and even in cases where the evidence is located abroad. Specifically, you might counsel your client to sue in U.S. federal court and even under U.S. federal law, as federal courts and federal law have been traditionally seen as particularly hospitable to transnational cases.

determine where the most convenient In today’s world of transnational litigation, bring your case. Not unsurprisingly, a rational litigant would shop among the various potential fora for the forum where there is the highest likelihood of a favorable outcome and bring the suit there. At one time, your advice to the client would have probably been in many (perhaps most) transnational cases: “Sue in the United States.” As Lord Denning, arguably the most celebrated English judge of the 20TH century, famously opined: “As a moth is drawn to light, so is a litigant drawn to the United States. If he can only get his case into their courts, he stands to win a fortune.” The argument is that in a world of increasing globalization, plaintiffs would prefer to bring suit in the United States to take advantage of favorable substantive and procedural law. There are several reasons why a plaintiff would want to bring suit in a U.S. forum. First, U.S. substantive law is thought to be more generous than the laws of other countries. Second, U.S. procedural law—in particular, notice pleading, liberal discovery, and aggregate (class action) litigation—gives plaintiffs substantial leverage in pleading,


proving, trying to a favorable verdict, and settling their case. Third, U.S. damages law—especially punitive damages and substantial jury awards—present the potential for a windfall for plaintiffs or, at a minimum, significant leverage to force defendants to settle.


your advice to the client might be different. Generally speaking, U.S. federal courts are increasingly reluctant to adjudicate transnational cases. The Supreme Court has made substantial refinements to doctrines such as personal jurisdiction, forum non conveniens, and the extraterritorial application of U.S. federal law that pose substantial obstacles for filing transnational suits in U.S. federal courts, especially under federal law. Indeed, upon filing a case in the United States, a foreign plaintiff is particularly susceptible to having her case dismissed by a U.S. court in favor of a foreign forum. Similarly, the Supreme Court has also constricted pleading doctrine and made it harder to certify class actions. Taken together, these federal developments short-circuit many of the reasons why a plaintiff in a transnational case would be drawn to U.S. federal law and courts to file a transnational case. Perhaps no better examples exist of this restriction of federal court access in transnational cases than the Supreme Court’s recent opinions in Kiobel v. Royal Dutch Petroleum and Daimler AG v. Bauman. In Kiobel, the Court decided that a Nigerian plaintiff could not bring suit against a Dutch corporation under the Alien Tort Statute (ATS) for alleged human rights violations occurring in Nigeria. According to the Court, where the harms complained of occurred wholly abroad, there is not a federal forum for such cases

under the ATS, unless the tortious conduct “touch[es] and concern[s]” the territory of the United States. In Bauman, the Court decided that Daimler AG, a German corporation, was not subject to general jurisdiction in California in a case alleging tortious activities committed by a subsidiary of Daimler AG in Argentina. These cases are just two examples of federal courts restricting the access of plaintiffs to U.S. federal law and courts in transnational cases. This emerging “restrictive ethos” to federal procedural and substantive law in transnational cases is having an impact not only on cases filed in federal courts, which would be the expected outcome of such decisions. Importantly, it is also having an effect on plaintiffs bringing transnational cases in federal, state, and foreign courts generally. For instance, some plaintiffs are engaging in domestic forum shopping and consciously avoiding federal procedural and substantive law by seeking to plead transnational cases under state law, in some cases in state courts in the very first instance. This raises complex issues regarding the allocation of judicial powers between federal and state courts in cases where foreign relations might be implicated. This also poses many important questions. For instance, what role should the several states play in adjudicating transnational cases? Even more interesting, some plaintiffs are now actively avoiding U.S. federal procedural and substantive law altogether. Instead, they are filing their claims in U.S. courts under foreign law and, in some cases, filing claims in the first instance under foreign law in foreign courts. This raises another important question: Should U.S. courts take account of this development as they apply domestic legal doctrine in transnational cases? Importantly, plaintiffs engaging in transnational forum shopping are seeing significant success. On January 30, 2013, for instance, a trial court in The Hague announced that it had entered a judgment against Shell Petroleum Development Company of Nigeria, a member of the Royal Dutch Shell group of companies, that it was liable under Nigerian law for harms arising from oil spills in Nigeria. According to one commentator, this “constitutes the first

time that a Dutch multinational has been sued before a civil court in The Netherlands in connection with allegations of damage caused abroad by a subsidiary and appears to be part of a trend” whereby plaintiffs “in the developing world turn to courts in developed countries for redress against multinationals.” In years past, this case would have been a prime candidate for filing in the United States, especially under the ATS, as was done by the plaintiffs in Kiobel. Today, it appears that there is a comparative advantage in filing such cases in foreign fora, especially in Europe. This transnational forum shopping presents a unique twist—namely, plaintiffs are seeking out other fora because those fora are engaged in forum competition to adjudicate transnational cases. Foreign courts are developing their law, both procedural and substantive, to encourage forum shopping into their courts. We are thus at the very beginning stage of a brave new world of transnational litigation where domestic and foreign courts compete through domestic and foreign law, both substantive and procedural, to regulate transnational activities as part of a transnational law market. This new world of transnational litigation is largely driven by private parties and their lawyers, who are forum shopping for favorable substantive and procedural law. These efforts are also part of an ongoing movement not only to file transnational cases in U.S. state and foreign courts, but to influence law development in those fora. For instance, there is a movement in Europe to overcome the traditional reluctance to aggregate litigation in favor of allowing class-action-like cases. There are also increasing damages awards in foreign courts that similarly show at least some export of traditionally American robust systems for recovery. In short, we now have a transnational law market where domestic and foreign courts compete to adjudicate transnational cases and where private parties and their lawyers engage in efforts designed to encourage such competition. Empirical evidence provides some support for the proposition that forum shopping is going transnational and to state courts. In


recent years, there has been a downturn in transnational cases filed in the United States. Despite the fact that the general caseload of the federal courts has continued to rise, transnational cases have decreased from a high of 3,293 cases in 1996 to 1,637 cases in 2005. This is likely a result of changes in U.S. federal substantive and procedural law that discourages forum shopping to the United States. Complaints must now be pled with plausibility; personal jurisdiction is harder to establish over alien defendants; courts are empowered to dismiss cases on discretionary grounds such as forum non conveniens; and significant obstacles exist to class certification. Taken together, these recent developments outweigh the traditional advantages of transnational litigation in the United States. Heightened substantive and procedural obstacles have thus short-circuited the benefits of forum shopping a transnational case to the United States, especially forum shopping into U.S. federal courts. As a matter of federal law alone, these developments may be appropriate. What is missed in federal doctrine and the scholarship that studies it, however, is the impact that these federal changes have on forum choice and forum competition beyond federal courts. Closing federal courthouse doors to transnational cases forces such cases into state and foreign courts and encourages plaintiffs to file their cases under state and foreign law. In light of these concerns, courts should focus on ascertaining sovereign interests directly when it comes to determining whether transnational cases should be heard in U.S. courts. Tools should be developed to enlist courts as active participants in a transnational legal system that takes account of the transnational law market by regulatory coordination as opposed to federal judicial abstention and transnational forum shopping. Adapted from Donald Earl Chldress’ article “Escaping Federal Law in Transnational Cases: The Brave New World of Transnational Litigation,” North Carolina Law Review (forthcoming 2014).

L A W. P E P P E R D I N E . E D U


 Faculty Essay

The refrain is simple yet distressing:

Antitrust, Regulation, and the “New” Rules of Sports Telecasts

team’s games live on television?”

By Babette Boliek

“Why can’t I watch my favorite Answering this question involves disentangling a thicket of statutes, regulations, and judicial decisions that have produced private contracts between leagues and corporations embedded with weighty restrictions such as “blackout” rules and exclusive distributorships. Investigating these restrictions raises bigger questions about their ultimate effects, such as: how do these contracts affect interests like industry-wide competition and consumer welfare? The two legal mechanisms that have traditionally protected these interests are antitrust law and regulation. However, within the professional sports and telecasts industries, these mechanisms have collided to create a labyrinth of regulation and uneven antitrust enforcement that has actually diminished consumer choice, program diversity, and competition. After using a novel quantitative analysis of sports-league antitrust jurisprudence, a reexamination of the Supreme Court’s recent antitrust decision in American Needle v. NFL, and an investigation of sports telecasts cases that exemplify tensions between antitrust and regulatory policy, this article provides recommendations to both (1) rationalize regulatory rules that currently create disparate treatment among leagues



and telecasters, and (2) clear the field for proconsumer competition in sports telecasts. Antitrust law and industry-specific regulation are two distinct means to achieve much the same social goal—to protect consumers and encourage efficiencies in production and distribution. Antitrust law is an enforcement regime that preserves competition across all private industries by condemning anticompetitive conduct only after it occurs. In contrast, industrial regulation is inherently a social admission that, in a given industry, market forces are too weak to produce the consumer benefits that are realized in competitive markets. Thus, a natural “tugof-war” arises when an industry involves an industry-specific regulator with a policy agenda in conflict with antitrust goals, and one historic example of this is the sports telecast industry. The first antitrust challenge to a league’s broadcast restrictions, United States v. NFL (NFL I), dealt with the early versions of the NFL’s blackout laws. These rules prohibited NFL member teams from broadcasting their own games to networks in markets other than their own on days when a team from the target market—the home team—is either playing at home or broadcasting its away game in that market. The NFL was charged with violating Section 1 of the Sherman Act which forbids independent competitors from joining together to centralize output and dictate a cartel price to consumers; in this case the direct consumer was the broadcaster. The Court determined that this prohibition on selling broadcast rights was justified because it protected gate receipts which were central to team profit, and profit was essential to maintenance of intra-league, competitive parity. However, the Court would not permit the NFL’s attempt to restrict sales of rights into another market when the home team was not physically playing in that market. Nevertheless, the NFL decided to evade antitrust entirely and successfully lobbied for a statutory exemption specifically for the “pooling” of broadcast rights, and thus the Sports Broadcasting Act (the SBA) was born. The SBA excludes from antitrust scrutiny the pooling of team broadcast rights

by the NFL, National Basketball Association (NBA), National Hockey League (NHL), and Major League Baseball (MLB), for sale to a broadcaster. Although many courts and scholars have rightfully referred to the SBA as “special interest legislation,” the SBA was, and still is, consistent with regulatory mechanisms contrived to support Congress and the FCC’s policy views that “local” programming on “free over-the-air” broadcast is in the “public interest.” And therein lies the tension as seen in NFL I: the reach of one local team into the region of another was viewed as beneficial to sports consumers; however, in the view of a regulator, such reach is potentially destructive to the local broadcaster’s revenue and, by association, destructive to FCC policy. To alleviate this tension, this article recommends reducing regulation and allowing antitrust to take the lead. In the realm of antitrust analysis, the most relevant prohibitions industry participants face are found in sections 1 and 2 of the Sherman Act. Broadly speaking, section 1 prohibits “any contract” among competitors that leads to an “unreasonable” “restraint of trade.” In contrast, the focus of section 2 is not on “agreement” between competitors, but unilateral activities by a single entity—in particular an entity with “monopoly power.” Additionally, courts evaluate section 1 violations with relatively high scrutiny, while scrutiny for section 2 is relatively low, and thus plaintiffs strive to identify section 1 violations whereas defendants seek characterization of client activity as “unilateral” rather than conspiratorial to face less stringent standard of review under section 2. The Supreme Court’s most recent sports league antitrust case arose when American Needle—a clothing manufacturer that previously made clothing with NFL team logos pursuant to a nonexclusive license— brought suit against the NFL after the NFL switched to an exclusive license for NFL logos with Reebok—thus excluding Reebok’s rival American Needle. American Needle argued that the NFL violated section 1 by

pooling individual teams’ rights in logos and merchandise while the NFL claimed it was acting unilaterally as a single entity. The Court—after stating that it has “long held that it will look to “substance” of the business and to the “economic realities” of the operations to determine single entity status—determined that the 32 member teams did not rise to the level of a “single entity” for the purpose of selling intellectual property. Although it appears that American Needle reaffirms that a proper analysis of joint ventures begins by a “functional analysis” of the alleged concerted action, the Court has arguably left lower courts confused as to how they should proceed with the analysis. Arguably American Needle dictates (or at least permits) a two-part test. After a plausible argument that there is an agreement, contract, or conspiracy, the test makes the following inquiry: Given the plausible concerted action, does the challenged activity constitute a core or central activity of the joint venture? This prong would employ a rule of reason analysis tethered to the challenged activity. The answer to this first question determines the standard by which to assess the second question: Is the restraint at issue unreasonable and therefore an illegal one? If the restraint is core to the joint venture, then for the second question the court should treat the restraint almost per se unreasonable. If the restraint is not core, then the traditional rule of reason analysis should be applied to the second question. Formulizing the test is advantageous because it demonstrates that the same league may be permitted to agree for certain “core” activities and yet found to illegally cooperate for other activities. In this instance, the NFL’s “common interest” in licensing team trademarks would have been deemed not core and was thus found unreasonable. In addition, this approach incorporates the rigor of section 1 analysis and the more permissive approach of section 2 analysis in the same test. If done correctly, the test will identify anticompetitive areas of greatest concern and embolden industry


to make pro-competitive innovations in their areas of core activity. Such core activities are exactly those where antitrust and regulatory policy is most commonly in tension—sports telecast cases. One such example previously discussed is NFL I, where the Court permitted the NFL to restrict outside teams from airing their products in home team areas when home teams played in the area, but not when no one was playing in the area. This decision was consistent with the “economic reality” of the day as the majority of a team’s profit was derived from gate receipts and thus protected less popular teams to maintain league competitiveness. However, the NFL then got the SBA enacted, which created disparities in antitrust treatment in not one, but two major markets. It carves out protection only for the NFL, NHL, NBA, and MLB and only when contracting with broadcasters (not cable or satellite). To solve this disparity problem, there are two alternatives: (1) make the SBA more universally applicable (shield all pooled rights contracts by any sports league with any telecaster from antitrust inquiry), or (2) eliminate the SBA entirely. Due to the SBA essentially being judicially irrelevant since the date of its enactment, and because there is ample evidence that the SBA’s original policy goal—to protect the revenues of incipient sports leagues—has been fully accomplished, prudent legislators would be well advised to repeal it and let antitrust take us where it will. The time has come to create regulatory symmetry, as antitrust is now, more than ever, better positioned to fill the gap left by the regulator in addressing anticompetitive conduct by joint ventures. The adoption of this article’s policy recommendations will not ensure certain outcomes, but they will guarantee more level and equitable treatment of sports league joint ventures under both regulatory and antitrust regimes. Adapted from Babette Boliek’s article, “Antitrust, Regulation, and the ‘New’ Rules of Sports Telecasts,” Hastings Law Journal (February 2014).

L A W. P E P P E R D I N E . E D U



Michael Helfand Embodies a Pepperdine Ideal By Tom Inkel



Michael A. Helfand did not spend much time in his chair during the awards portion of Pepperdine University School of Law’s annual dinner. To the applause of an audience of over 700 guests—including United States Supreme Court associate justice Samuel A. Alito, Jr. —Deanell Tacha, dean of the School of Law, presented Helfand with both the studentvoted Professor of the Year award and the Dean’s Award for Excellence in Scholarship. For Helfand, also the associate director of Pepperdine’s Glazer Institute for Jewish Studies, the acknowledgement was one of many received from Pepperdine and the legal community over the last year. “We had very high expectations when we hired Michael, and he has actually exceeded them,” says associate dean for research and faculty development Robert Pushaw. “Professor Helfand demonstrates that one’s faith, scholarship, and teaching can be intimately connected and lead to excellence in all areas. It has been a pleasure watching him develop so rapidly as an outstanding teacher and scholar.” Helfand, who joined the School of Law faculty in 2010, focuses his research on the intersection of law and religion, focusing on a range of topics such as the rights of religious institutions and the enforceability of religious commercial transactions. Helfand’s many recent scholarly works include his forthcoming coauthored article in the Duke Law Journal titled “The Challenge of CoReligionist Commerce,” which has already been cited by the Kentucky Supreme Court. In addition, his recent article “Litigating Religion,” published in the Boston University Law Review, was selected for presentation at Harvard Law School at the annual HarvardStanford-Yale Junior Faculty Forum as one the top articles written by a junior scholar. Helfand’s focus on the relationship between religion and government has put his commentary front and center in some of the recent high-profile debates over the treatment of religion and religious institutions. He has been asked in the past year to present at over 20 academic conferences and professional institutions, including providing expert testimony to the U.S. Commission on Civil

Rights during a 2013 briefing on Reconciling Non-Discrimination Principles with Civil Liberties. His national press appearances included a Los Angeles Times op-ed entitled “Obamacare and Religious Rights in a For-Profit World,” which addressed the religious liberty protection afforded for-profit corporations, as well as an op-ed in the National Law Journal entitled “Following Defeats, Anti-Sharia Law Supporters Revert to Sneaky Tactics,” which criticized the continued trend of anti-Sharia laws in the United States. In the context of his work on law and religion, Helfand frequently lectures and coordinates events related to interfaith collaboration and understanding. For example, Helfand delivered a keynote address at Hong Kong University’s conference on “Religion and Politics” and participated in the conference’s public interfaith panel considering the relationship between religion and power. Helfand also organized a symposium titled Islamic and Jewish Law in the 21st Century: Contemporary and Philosophical Challenges to Religious Law, which was jointly sponsored by the Islamic Law and Jewish Law Sections of the American Association of Law Schools as part of the 2014 AALS annual meeting in New York. Helfand continues his work serving as an arbitrator and consultant for the Beth Din of America— one of the most prominent rabbinical courts in the United States—working to use both Jewish law and American law to protect individuals caught in the middle of personally difficult religious disputes. Helfand’s accomplishments seem likely to continue in the year ahead. He is editing a book to be published by Cambridge University Press titled Negotiating State and Non-State Law: The Challenges of Global and Local Legal Pluralism. Helfand has also accepted an invitation to write a feature piece in the Yale Law Journal on the topic of privatization and First Amendment values in adjudication—tentatively titled “Arbitration’s Counter-Narrative: Religious Arbitration 21

Professor Helfand demonstrates that one’s faith, scholarship, and teaching can be intimately connected and lead to excellence in all areas. It has been a pleasure watching him develop so rapidly as an outstanding teacher and scholar. —Professor Robert Pushaw

Tribunals as First Amendment Institutions”— and will speak about this topic at the Yale Law School in October 2014. While Helfand’s talents as a teacher and scholar have led to great success over the last five years, he is quick to share credit with Pepperdine. While serving this past year as a panelist at Harvard Law School’s Conference on Religious Accommodation in the Age of Civil Rights, Helfand told the audience how grateful he was to have joined Pepperdine as a faculty member. “I joined an institution that has a religious mission that benefits me every day, provides me funding for things that I wouldn’t receive otherwise, and is extremely sensitive to my own religious perspective.” L A W. P E P P E R D I N E . E D U




 avid Han joined the Pepperdine law D school faculty as an associate professor of law in the summer of 2013. Prior to that, he was an acting assistant professor of lawyering at New York University School of Law, a litigation associate at Munger, Tolles & Olson, and a law clerk to the Honorable Michael Boudin on the United States Court of Appeals for the First Circuit and the Honorable David Souter on the Supreme Court of the United States. Han’s scholarship reflects his dual interest in free speech issues and tort law. This past May, the William and Mary Law Review published Professor Han’s article “The Mechanics of First Amendment Audience Analysis.” This article analyzed the judgments that courts make in evaluating how audiences interpret and react to speech. Han proposed that these inquiries—which he calls “audience analysis”— should be governed by a simple principle: courts should strive to predict how actual targeted audiences will likely process the speech in question, rather than craft a strong normative view as to how an idealized “rational audience” should process that speech. Han’s article was selected for inclusion in the 2014-2015 volume of the First Amendment Law Handbook as one of the most significant First Amendment articles of the past year. Han is currently working on a project, entitled “Rethinking SpeechTort Remedies,” that discusses how remedies should be structured in speech-tort cases. Traditionally, when torts cases implicate the values of the First Amendment’s protection of free speech, courts hold either that the First Amendment completely exempts the defendant from traditional tort liability, or that the First Amendment does not come into play at all and the plaintiff is entitled to full tort remedies. Han argues that courts should adopt more intermediate approaches where the First Amendment applies not to vitiate tort liability completely, but merely to limit or eliminate the damages to which plaintiffs are entitled. This paper was the subject of presentations Han gave over the past year at Yale Law School, Loyola University Chicago School of Law, and at the Southeastern Association of Law Schools’ annual meeting. In his first year at Pepperdine, Han taught first-year Torts, along with Speech Torts, an upper-level elective that examines the intersection between tort law and the First Amendment’s protection of free speech. Along with his teaching and scholarship, Han served as a guest blogger on Prawfsblawg, a popular legal blog. Over the past year, Han also served as a panel moderator at the Nootbaar Institute’s conference on Love and the Law, as a judge in a moot court session preparing UCLA Professor Eugene Volokh for an oral argument before the Indiana Supreme Court, and as a faculty advisor for the Asian Pacific American Law Students Association (APALSA). PEPPERDINE LAW

 ow in her third year of N teaching tax at the School of Law, associate professor Khrista Johnson has quickly hit her stride as a scholar, both on-campus and in the legal community. However, the 2003 Harvard Law School graduate is just as well-known to students and faculty for her service involvement. “As a follower of Christ, I believe the opportunity to share what God has done in my life and to serve others, while working both to influence legal thought through scholarship and lives through teaching, is an immeasurably joyful one,” Johnson says. “I could not ask for a more talented or supportive group of fellow faculty members in the endeavor to fulfill it.” Recent and upcoming publications this year include “The Charitable Deduction Games: Are the Laws in Your Favor?” in the Columbia Journal of Taxation, and “The Charitable Deduction Games: Catching Change” in the Georgia State University Law Review. She was invited to present scholarly articles as part of workshops held at the University of Miami in 2013 and at American University in 2014 in association with the Junior Tax Group, a highly selective group for pre-tenure tax faculty across the nation. On-campus, Johnson served with fellow professor Robert Popovich as a co-faculty advisor for the School of Law’s first tax practicum, and she moderated a panel on international and business tax during Pepperdine Law Review’s second tax symposium, hosted by fellow professor Paul Caron. Johnson is actively involved with the on-campus Christian Legal Society (CLS) and was selected by graduating CLS students to deliver a faculty address during their last meeting on campus. She served as the faculty coordinator for student-led worship nights on campus, volunteered beside students, practitioners, and other law schools’ students at a Christian Legal Aid of Los Angeles (CLA-LA) clinic for low-income individuals, and continued her involvement with planning and events associated with the Nootbaar Institute, the Global Justice Program, and the School of Law Spiritual Life Committee. For these and other scholarly and philanthropic activities, Johnson was recently elected to the executive committee of the AALS Nonprofit and Philanthropy Law Section, as well as selected as a new contributing editor for the national Nonprofit Law Prof blog. She continues to serve as a member of the National Center on Philanthropy and the Law’s (NCPL) Philanthropy Professors Network, hosted by New York University.



VICTORIA L. SCHWARTZ E lection law is one of the hottest areas of litigation, as candidates vie for ballot access, political groups donate money to air advertisements, and parties try to control their organizations. Derek Muller has been at the forefront of these matters in recent scholarship and presentations in this dynamic and rapidly changing field.

Muller was invited to participate on a panel at the Association of American Law Schools for the Section on Legislation and Law of the Political Process, held in New York City in January 2014. The topic for the panel was “From McReynolds to Shelby County and Beyond: Voting Rights and the Court.” He scrutinized a pair of recent Supreme Court cases, Arizona v. Inter Tribal Council and Shelby County v. Holder, and the panel discussed the implications of these and other cases in the future of election administration and election law litigation. The discussion yielded a publication in the peer-reviewed Election Law Journal called “The Play in the Joints of the Election Clauses.” Muller’s work frequently examines the interplay between state and federal roles in the administration of elections. In a forthcoming piece in the Indiana Law Journal, Muller identified the appropriate roles of states in reviewing the constitutional qualifications of candidates for federal office. The piece, “Scrutinizing Federal Electoral Qualifications,” argues that states have no role in evaluating whether candidates for Congress meet the Constitution’s qualifications; that is a role reserved to Congress itself. For presidential candidates, however, the matter differs. State legislatures have no duty to examine the qualifications of presidential candidates. But if they choose to do so, they face the complications of ceding administrative power to election officials, imminent litigation, and thwarting the choice of voters. Muller has been active in the local community, too. In the last year, he has participated on panels for the Anti-Defamation League at an event hosted by the Orange County Bar Association in Irvine and on a panel at California State University, Northridge. Both panels focused on the future of the Voting Rights Act and recent Supreme Court decisions evaluating Congress’s power to regulate state elections. “The processes we use to elect our representatives are the cornerstone of our form of government,” Muller explains. “And in the United States, we have two governments running those processes, sometimes at the same time. I look forward to continuing to examine the proper responsibilities of government in our federal system, and how we can best protect the institutions and rights that make our representative government what it is.”

 ictoria L. Schwartz joined the V Pepperdine University School of Law faculty as an associate professor of law in the summer of 2013, largely due to the value that the school places on excellence in both teaching and scholarship. She has already made her mark at the School of Law in both areas.  mong Schwartz’s innovative approaches to courses is her seminar A Business Perspectives on Workplace Privacy, which she previously taught in a smaller form at the University of Chicago Law School. The seminar was born of an observation that Schwartz made while practicing as a litigation associate in a large Los Angeles law firm: when faced with a situation without a clear answer, a junior lawyer’s first instinct is to stop with “I don’t know,” often to the consternation of the client. “Students and junior attorneys are uncomfortable with gray,” Schwartz says. “But we have to advise our clients in situations that are often unsettled.” In her seminar, Schwartz—who also teaches and researches in the areas of intellectual property, entertainment law, contracts, employment, and privacy—challenges students to develop reallife skills for confronting gray areas, formulating strategies, and committing to positions with clients. Rather than take an exam, students write a legal memo responding to a realistic problem from a hypothetical client in the gray landscape of workplace privacy. Among her other activities over the last year was a presentation on the topic “Corporate Privacy Problems Start at the Top” at the National Business Law Scholars Conference, hosted by Loyola Law School in June 2014. She spoke about “Unpacking Trade Secret Analogies” at the Works-in-Progress Intellectual Property event hosted by Santa Clara Law in February 2014. At Pepperdine’s 2013 William French Smith Memorial Lecture, she co-moderated a discussion with former secretary of homeland security Michael Chertoff on the topic of “Big Brother as Big Data.” She also moderated a panel during the School of Law’s “Future of National Security Law” symposium. Additionally, Schwartz’s two most recent scholarly articles were both selected for inclusion in anthologies of best law review articles. Her article “Disclosing Corporate Disclosure Policies” in the Florida State University Law Review was selected for inclusion in the 2014 edition of Securities Law Review, an anthology of the best securities law articles published during 2013; and her previous article “Title VII: A Shift from Sex to Relationships,” which appeared the Harvard Journal of Law and Gender (2012), was reprinted in the Dukeminier Award Journal and was also awarded the Stu Walter Prize. 23

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FA C U LT Y & S C H O L A R S H I P Articles

FACULTY SCHOLARSHIP Selected Scholarly Publications and Presentations for 2013-2014 BABETTE E. BOLIEK

Presentations Current Telecommunications Issues and Their Impact on Sports Broadcasting, Panelist, Mississippi Sports Law Review Annual Symposium, Oxford, Mississippi (upcoming Oct. 2014). Current Net Neutrality Issues and Policy, Presenter, Digital Policy Institute Webinar on Net Neutrality (July 2014). Coercion by Contract, Paper Presentation, the Ninth Annual International Contract Conference, St. John School of Law, Miami Gardens, Florida (Feb. 2014). Competition Policy, Innovation, and Internet Governance, Presenter, Silicon Flatirons Conference on Digital Broadband Migration: After the Internet Protocol Revolution, Boulder, Colorado (Feb. 2014). Innovation and Consolidation in International Telecommunications, Speaker, the 41st Telecommunications Policy and Research Conference, George Mason School of Law, Arlington, Virginia (Sept. 2013).


Book Criminal Pretrial Advocacy (with Terry Adamson) (Vandeplas Publishing 2013).


Shades of Guilt: Combating the Continuing Influence upon Jury Selection of Racial Stereotyping in Post-Batson Trials, 37 Am. J. Trial Advoc. ___ (forthcoming 2014). The Prosecutor Prince: Misconduct, Accountability, and a Modest Proposal, 63 Cath. U. L. Rev. 51 (2014).

Tax Reform in a Time of Crisis, Conference on Tax Reform in a Time of Crisis, Pepperdine University School of Law, Malibu, California (Jan. 2014). Law Professor Blogs Network 2.0: Faculty, IT, and Vendor Collaboration, Presenter, Conference on Driving Innovation, Chicago-Kent College of Law (June 2013).





Pursuing a Tax LLM Degree: Why? When? Where? (with Jennifer Kowal, Katherine Pratt & Ted Seto) (ABA Press forthcoming 2014).

Articles Revitalizing the Estate Tax: Five Easy Pieces (with James Repetti), 142 Tax Notes 1231 (2014). Tax Reform in a Time of Crisis, 142 Tax Notes 1106 (2014). Rethinking the Penalty for the Failure to File Gift Tax Returns (with Jay Soled, Charles Davenport & Richard Schmalbeck), 141 Tax Notes 757 (2013).

Presentations Keynote Address, Faculty Scholarship at FaithBased Law Schools: Long Tails, Moneyball, and Rankings in a Time of Crisis, Presenter, Faculty Retreat, Regent University School of Law, (Feb. 2014). Love and Law, Violence and Freedom, Moderator, Conference on Love and Law, Pepperdine University School of Law, Malibu, California (Feb. 2014). Measuring Inequality, Moderator, Conference on Growing Income Inequality: Is Tax Policy the Cause, the Cure or Irrelevant? USC Gould School of Law (Feb. 2014). Revitalizing the Estate Tax: Five Easy Pieces, Presenter, Faculty Workshop Series, Pepperdine University School of Law (Feb. 2014).


Escaping Federal Law: The Brave New World of Transnational Litigation, 93 N.C. L. Rev. ___ (forthcoming 2014). General Jurisdiction After Bauman, 66 Vand. L. Rev. En Banc 197 (2014) (solicited essay). Colloquy, Erie’s International Effect: A Reply, 108 Nw. U. L. Rev. 1 (2013). Does International Investment Law Need Administrative Law?, 54 Harv. Int’l L.J. Online 115 (2013) (solicited review essay). Foreword: After Kiobel—International Human Rights Litigation in State Courts and Under State Law (with Michael D. Ramsey & Christopher A. Whytock), 3 U.C. Irvine L. Rev. 1 (2013). General Jurisdiction and the Transnational Law Market, 66 Vand. L. Rev. En Banc 67 (2013) (solicited essay). Private International Law and Transnational Litigation, 61 Am. J. Comp. L. 461 (2013) (solicited peer-edited review essay). Rethinking Legal Globalization: The Case of Transnational Personal Jurisdiction, 54 Wm. & Mary L. Rev. 1489 (2013).

Book Transnational Law and Practice (with Michael D. Ramsey and Christopher A. Whytock) (Aspen Publishers forthcoming 2015).

Presentations The Future of Alien Tort Statute Litigation PostKiobel, Presenter, UCLA Journal of International Law and Foreign Affairs Annual Symposium, Los Angeles, California (Mar. 2014).

Commenter, Southern California International Law Scholars Workshop, USC Gould School of Law, Los Angeles, California (Feb. 2014). Choice of Law in International Commercial Arbitration, Presenter, Brooklyn Law School, New York, New York (Oct. 2013). Commenter, American Society of International Law Mid-Year Meeting, New York, New York (Oct. 2013). The Future of Investment Treaty Arbitration, Presenter, International Law Weekend, Fordham Law School, New York, New York (Oct. 2013). The Current State of Private International Law, Presenter, International Law WeekendMidwest, Washington University School of Law, St. Louis, Missouri (Sept. 2013).


Books The Counselor-at-Law: A Collaborative Approach to Legal Interviewing and Counseling (with John M.A. DiPippa and Martha M. Peters) (Lexis Law Publishing 3d ed. 2014). Law and the Bible: Justice, Mercy, and Legal Institutions (with David VanDrunen) (InterVarsity Press 2013).

Article Symposium, Church Freedom and Accountability, 21 U. San Diego J. Contemp. Legal Issues 427-448 (2013).

Essays and Book Chapters Modern Legal Traditions: United States, in Oxford Encyclopedia of the Bible and Law (2014) . The Kingdom of God, Law, and the Heart: Jesus and the Civil Law (with Dallas Willard), in Law and the Bible (Robert Cochran and David VanDrunen eds., InterVarsity Press 2013).



Book Chapter


Making Remission and Other “Curative” Mechanisms Part of the Forum Shopping Conversation –A View from the United States with Comparative Notes, reprinted in Forum Shopping in the International Commercial Arbitration Context 347 (Franco Ferrari, ed., 2013).

Article A Reply to“Hollow Spaces” (with George A. Bermann, Christopher R. Drahozal & Catherine A. Rogers), 62 Buff. L. Rev. 177 (2014).

Love and Global Justice, Speaker, Love and Law Conference, Nootbaar Institute, Pepperdine School of Law, Malibu, California (Feb. 2014). Overcoming Barriers, Speaker, Advancing the Rule of Law in East Africa, Virginia Beach, Virginia (Feb. 2014). The Path to Plea Bargaining in Uganda, Speaker, Uganda Annual Judicial Conference, Entebbe, Uganda (Jan. 2014).





Products Liability: Cases & Materials (with David A. Fischer, William C. Powers, Jr., Michael D. Green & Joseph Sanders) (American Casebook Series 5th ed. 2013).


Now Children Learn Better: Revising No Child Left Behind to Promote Teacher Effectiveness in Student Development, 14 Md. J. of Race, Religion, Gender & Class (forthcoming 2014).


Biomedical Research and the Push for Animal Legal Personhood, Presenter, Massachusetts Society for Medical Research Animal Law Symposium, Boston, Massachusetts (upcoming Dec. 8, 2014). Evolving Legal Issues, Animals, and Research, Presenter, Neuroscience 2014, Panel Presentation Hosted by the Society for Neuroscience Committee on Animals in Research, Washington, D.C., (upcoming Nov. 18, 2014). Understanding Animal Legal Personhood Issues, Presenter, National Association for Biomedical Research Webinar, Washington, D.C. (Apr. 16, 2014). Live Chat: Should Animals Be Granted Legal Rights?, Presenter, Webcast Chat/Debate Sponsored and Moderated by the Magazine Science (Dec. 5, 2013).

Maximizing the Benefits of Diversity in the Classroom, Presenter, Christians on Diversity Conference, Azusa Pacific University (Mar. 26, 2014). Maximizing the Benefits of Diversity in the Classroom, Presenter, Santa Barbara and Ventura Colleges of Law (Aug. 15, 2013). Commentator, Presentation of Draft Paper Entitled “Why Prosecute For-Profit Providers of Higher Education?” Southeast-Southwest People of Color and the Law Conference, Little Rock, Arkansas (Apr. 5, 2013). Presentation of Work-in-Progress Draft Paper Entitled “Forty Years of Wrongs Don’t Make Things Right,” Presenter, Southeast-Southwest People of Color and the Law Conference, Little Rock, Arkansas (Apr. 5, 2013).


Book The Intercountry Adoption Debate: Dialogues Across Disciplines, (Ballard, Goodno & Cochran eds., Cambridge Scholars Publishing 2014). PEPPERDINE LAW


L A W. P E P P E R D I N E . E D U

FA C U LT Y & S C H O L A R S H I P Articles Hope for the Most Vulnerable in Developing Countries: Failure to Enforce the Rule of Law as a Crime Against Humanity (forthcoming).

Between Law and Religion: Procedural Challenges to Religious Arbitration Awards, 90 Chi.-Kent L. Rev. (invited symposium contribution) (forthcoming 2014).

When the Commerce Clause Goes International: A Proposed Legal Framework for the Foreign Commerce Clause, 66 Fla. L. Rev. 1190 (2013).

A Liberalism of Sincerity: Religion’s Role in the Public Square, 1 J.L. Religion & St. 217 (2013) (peer reviewed).


Religious Legal Theory Symposium Introduction, 39 Pepp. L. Rev. 1051 (2013) (with Robert Cochran) (symposium introduction).

Article The Mechanics of First Amendment Audience Analysis, 55 Wm. & Mary L. Rev. 1647 (2014) (to be reprinted in The First Amendment Law Handbook (Rodney A. Smolla, ed., West 2014-2015).

Presentations Flexible Remedies in Speech-Tort Jurisprudence, Presenter, Freedom of Expression Scholars Conference, Yale Law School (May 2014). Liability and Remedy in Speech-Tort Jurisprudence, Speaker, Loyola Constitutional Law Colloquium, Loyola University Chicago School of Law (Nov. 2013).


Book Negotiating State and Non-State Law: The Challenges of Global and Local Legal Pluralism (Michael A. Helfand, ed., Cambridge University Press forthcoming 2015).

Chapter The Persistence of Sovereignty and the Rise of the Legal Subject, in Negotiating State and Non-State Law: The Challenges of Global and Local Legal Pluralism (Michael A. Helfand, ed., Cambridge University Press, forthcoming 2015).

Articles The Challenge of Co-Religionist Commerce, 64 Duke L.J. (with Barak D. Richman) (forthcoming 2015).


Purpose, Precedent, and Politics: Why Concepcion Covers Less than You Think, 4 Y.B. Arb. & Mediation 126 (2013) (invited symposium contribution). What Is a “Church”?: Implied Consent and the Contraception Mandate, 21 J. Contemp. Legal Issues 401 (2013) (invited symposium contribution).

Presentations Jewish Law and Islamic Law in the U.S. Legal System, Panelist, Conference on Jewish and Islamic Legal Systems: Comparisons and Relationships, UC Irvine School of Law (Sept. 17, 2014). Enforcing Co-Religionist Commerce, Speaker, Annual Law and Religion Roundtable, Washington University School of Law (June 26, 2014). The Current Clash, Panelist, Conference on Religious Accommodation in the Age of Civil Rights, Harvard Law School (Apr. 4, 2014). When Arbitration Goes Religious: The Lawyer’s Toolkit, Speaker, American Bar Association Annual Conference on Dispute Resolution, Miami, Florida (Apr. 3, 2014). Legal Issues: Delegation, Recognition, and Enforcement, Panelist, Conference on Religious Tribunals and the Law: Conflict or Conciliation?, Willamette University College of Law (Mar. 17, 2014). Work-in-Progress Workshop, Commentator, Comparative Law, UCLA School of Law (Mar. 7, 2014). Enforcing Co-Religionist Commerce, Speaker, Fifth Annual Religious Legal Theory Conference, Emory University School of Law (Feb. 24, 2014).


Enforcing Co-Religionist Commerce, Speaker, Faculty Workshop, Whittier Law School (Feb. 17, 2014). Who Will Be Exempted from the Affordable Care Act? Hobby Lobby, Little Sisters and the Other Religious Exemption Cases Before the Supreme Court, Panelist, USC Gould School of Law (Feb. 5, 2014). Keynote Lecture “Between Law and Religion: Procedural Challenges to Religious Arbitration Awards,” Keynote Speaker, Conference on Religion and Power, Hong Kong University (Jan. 13, 2014). Speaker and Panelist, Interfaith Program on “Religion and Politics: Power and Empowerment,” Faith and Global Engagement, Hong Kong University (Jan. 13, 2014). Religious Law in U.S. Courts, Moderator, Joint Program of the AALS Jewish Law and Islamic Law Section, AALS Annual Meeting, New York, New York (Jan. 5, 2014). Enforcing Co-Religionist Commerce, Speaker, Prawfsfest XI, Pepperdine University School of Law (Dec. 10, 2013). On Religion and Money, Speaker, University of Mississippi Faculty Workshop (Nov. 22, 2013). Private International Law Beyond the State: Family Law and Legal Pluralism, Panelist, Annual Meeting of the American Society for Comparative Law (Oct. 11, 2013). On Religion and Money, Speaker, Biannual Conference of the International Consortium on Law and Religion Studies, College of William and Mary (Aug. 22, 2013). Between Law and Religion: Procedural Challenges to Religious Arbitration Awards, Speaker, Biannual Conference of the International Consortium on Law and Religion Studies, Richmond, Virginia (Aug. 21, 2013). Between Law and Religion: Procedural Challenges to Religious Arbitration Awards, Speaker, Conference on Sharia and Halakha in America, IIT Chicago-Kent School of Law/ University of Illinois at Chicago (Apr. 15, 2013). Religion’s Footnote Four: Church Autonomy as Arbitration, Speaker, BYU Law and Religion Colloquium, BYU School of Law (Jan. 24, 2013).


Articles Student Rights and School Resource Officers:The Myth of the School-to-Prison Pipeline, 59 St. Louis U. L. J. ____ (forthcoming 2014). Tinker in the Era of Judicial Deference: The Search for Bad Faith, 81 UMKC L. Rev. 601 (2013).


Article The Charitable Deduction Games: Catching Change, ___ Ga. St. U. L. Rev. ___ (forthcoming 2014).

The Play in the Joints of the Election Clauses, 13 Election L.J. 310 (2014). Invisible Federalism and the Electoral College, 44 Ariz. St. L.J. 1237 (2012).

Presentations From McReynolds to Shelby County and Beyond: Voting Rights and the Court, Panelist, Section on Legislation and Law of the Political Process, Association of American Law Schools Annual Meeting, New York, New York (Jan. 2014). Judicial Decision Making and Election Administration: The Role of the Courts in the 2012 Election, Panelist, Southeastern Association of Law Schools Annual Meeting, Palm Beach, Florida (Aug. 2013).




Book Chapters

The American Constitutional Order (with Stephen B. Presser, John C. Eastman and Raymond B. Marcin) (LexisNexis 3d ed. 2009 and 2011 Supp.; 4th ed. forthcoming Fall 2014). Zoning and Planning Deskbook (two-volume treatise) (West, 2d ed. 2013).


Book National Security Investigations and Bureaucratic Control: The Reorganization of the Department of Justice After 9/11 (Oxford University Press forthcoming 2014).

Article Secrecy, Democratic Accountability, and the FISA Court, __ Harv. J.L. & Pub. Pol’y __ (forthcoming 2014).



February and August 2014 Updates (two volumes, Volume 41, Chapters 470 to 472B, and Volume 41A, Chapters 473 to 474C) to California Public Administrative Law (1997 revision author) (Matthew, Bender & Co. 2013) (part of the multiple-volume California Forms of Pleading and Practice Set (July 1997) (2 updates per year).

Presentations Presentations on 1) Privileges, Confidentiality, and Medical Privacy in Administrative Proceedings, 2) Judicial Ethics in ALJs, and 3) History and Evolution of Administrative Agencies, Speaker, Fall 2014 National Association of Hearing Officers (NAHO) Annual Meeting, Charleston, South Carolina (Nov. 2014). Discussion on Due Process of Law and Administrative Adjudication and Meeting with the National Association of Administrative Law Judiciary (NAALJ) Board of Governors and with the NAALJ Journal Board of Advisors, Speaker and Faculty Journal Editor, Fall 2014 NAALJ 40th Anniversary Annual Meeting, Memphis, Tennessee (Sept. 2014).

Presentations on: 1) Demeanor Evidence and Credibility Determinations for Administrative Law Judges (ALJs), 2) Judicial Ethics for ALJs, and 3) History and Evolution of Administrative Agencies, Speaker, Fall 2013 National Association of Hearing Officers (NAHO) Annual Meeting, St. Paul, Minnesota (Sept. 2013).


Books Real Estate Transfer, Finance, and Development (with Dale A. Whitman, Ann Burkhart & Wilson Freyermuth) (West 8th ed. forthcoming, 2015). Real Estate Finance Law (with Dale A. Whitman, Ann Burkhart & Wilson Freyermuth) (West 6th ed. 2014) (Hornbook Series). Real Estate Finance Law (with Dale A. Whitman, Ann Burkhart & Wilson Freyermuth) (West 6th ed. 2014) (Practitioner Treatise Series – two volumes).

Article The Likely Impact of National Federation on Commerce Clause Jurisprudence (with Robert J. Pushaw, Jr.), 40 Pepp. L. Rev. 975 (2013).


Article Buffering Burnout: Preparing the Online Generation for the Occupational Hazards of the Legal Profession, 23 S. Cal. Interdisc. L.J. ___ (forthcoming 2014)


Book Chapter Chapter 15 (with Peter Wendel), in Emanuel Law Outlines: Wills, Trusts, and Estates (Wolters Kluwer Law & Business Spring 2014).

Scrutinizing Federal Electoral Qualifications, 90 Ind. L.J. (forthcoming).


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Articles Fortuity and the Article III “Case”: A Critique of Fletcher’s The Structure of Standing, 64 Ala. L. Rev. 289-348 (2013) (symposium issue). The Paradox of the Obamacare Decision: How Can the Federal Government Have Limited Unlimited Power?, 65 Fla. L. Rev. 1993-2053 (2013). The Likely Impact of National Federation on Commerce Clause Jurisprudence, 40 Pepp. L. Rev. 975-1000 (2013) (coauthored with Grant S. Nelson).


Presentations Plenary Session on the Pedagogy of Property, Panelist, Association for Law, Property and Society (ALPS) 2014 Meeting, University of British Columbia (May 2014). Takings, Regulation, and Revocation: Government Powers and Private Property Rights, Panelist, Association for Law, Property, and Society (ALPS) 2014 Meeting, University of British Columbia (May 2014). Controlling Abuse of Power in Land Use Regulation, Presenter, Syracuse University School of Law Speaker’s Series (Nov. 2013). Confab on Public Rights in Water, Participant, Vermont Law School (June 2013). Public Land Development Corporation and Property Rights in Hawaii, Moderator, University of Hawaii Richardson School of Law (Feb. 2013).


Articles Disclosing Corporate Disclosure Policies, 40 Fla. St. U. L. Rev. 487 (2013) (selected for inclusion in and reprinted in Securities Law Review (Clark Boardman Callaghan 2014), an anthology of the best securities law articles published during 2013).


Title VII: A Shift from Sex to Relationships, 35 Harv. J.L. & Gender 209 (2012) (reprinted in 12 The Dukeminier Awards Journal: Best Sexual Orientation and Gender Identity Law Review Articles of 2012 (2013)).

Presentations Corporate Privacy Problems Start at the Top, Presenter, National Business Law Scholars Conference, Loyola Law School (June 2014). The Future of American National Security Surveillance, Moderator, The Future of National Security Law, Pepperdine University School of Law (Apr. 2014). Unpacking Trade Secret Analogies, Presenter, Works-in-Progress Intellectual Property, Santa Clara University School of Law (Feb. 2014). Analogizing Privacy?, Presenter, Prawfsfest XI, Pepperdine University School of Law (Dec. 2013).


Book Chapter Soft Law in the Organization and General Conduct of Commercial Arbitration Proceedings, in Soft Law in International Arbitration (Juris Publishing forthcoming 2014).

Articles Reflections on the State and Future of Commercial Arbitration: Challenges, Opportunities, Proposals, Am. Rev. Int’l Arb. (forthcoming 2014).

In Quest of the Arbitration Trifecta, or ClosedDoor Litigation?: The Delaware Arbitration Program, 6 Pepp. J. Bus., Entrepreneurship & L. 102 (2013)(published in Symposium on the Delaware Arbitration Program, available at

Presentations Mediation from the Inside Out: Insights from an International Survey of Experienced Mediators, Presenter, Arbitration and Mediation Institute of New Zealand, Wellington, NZ (Sept. 29, 2014). Negotiation Skills and Strategies Workshop, Presenter, Hitotsubashi University Graduate School of International Corporate Strategy, Tokyo, Japan (Mar. 26-27, 2013). Lessons from Lincoln, Webinar, Presenter, ABA Section on Dispute Resolution (Feb. 11, 2014). Symposium, Organizer, Speaker, and Panel Moderator, Women in Hollywood: 100 Years of Negotiating the System (cosponsored by the Straus Institute for Dispute Resolution and the Pepperdine University Center for Entertainment, Media, and Culture), Pepperdine University (Nov. 15-16, 2013).


Article Unintended Consequences: An Experimental Investigation of the (In)effectiveness of Mandatory Disclosures, ___ Santa Clara L. Rev. ___ (with Molly Mercer) (forthcoming 2014).


Managing Construction Conflict: Unfinished Revolution, Continuing Evolution, 34 (4) Construction Law. __ (forthcoming fall 2014) (article invited for special “Crystal Ball” issue). Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play (with Z. Ulrich), 6 Y.B. Arb. & Mediation 1 (2014)(available at SSRN: abstract=2461839). Living with ADR: Evolving Perceptions and Use of Mediation, Arbitration, and Conflict Management in Fortune 1000 Corporations (with R. Lamare), 19 Harv. Negot. L. Rev. 1 (2014)(available at SSRN: abstract=2221471).


Book Chapters Chapters 1-14, in Emanuel Law Outlines: Wills, Trusts, and Estates (Wolters Kluwer Law & Business Spring 2014).

Presentation Distressed Cities and Urban Farming: Are We Making a Mountain Out of a Molehill?, Presenter, University of Detroit Mercy Law Review Urban Farming Symposium.


Articles Gamechanger: NCAA StudentAthlete Likeness Litigation and the Future of College Sports, 3 Miss. Sports L. Rev. 80 (2014).

International and Olympic Dispute Resolution, Presenter, Pepperdine Straus Institute (May 2014). NCAA in Crisis, Presenter, University of Oregon Law Review Symposium, Eugene, Oregon (Apr. 2014).

The Accidental Preemption Statute: Federal Arbitration Act and Displacement of State Agency Regulation, 6 Penn. St. Y.B. Arb. & Mediation 59 (2013).

Sports Arbitration, Panelist, Sports and Entertainment Law Forum, University of Oregon/Sports Lawyers Association, Portland, Oregon (Feb. 2014).

The New Normal in College Sports: Realigned and Reckoning, 41 Pepp. L. Rev. 209 (2013).

ADR and the Regulatory State, Panelist, Association of American Law Schools (AALS) Annual Meeting, New York, New York (Jan. 2014) (Sports Law Section, Program Organizer and Officer, Unprecedented Changes in College Sports).

The Public Costs of Private Judging, in University of Nebraska Law-Lincoln, Conference on Justice, Conflict, and Well-Being (Springer Publication 2013).

Presentations International Sports Law, Lecturer, University of Oregon, Sports Law Institute (July 2014).

Panel on International Sports, Moderator and Board Member, Sports Law Institute Annual Conference, Marquette University, National Milwaukee, Wisconsin (Oct. 2013). Presentation, Mississippi Sports Law Review Symposium on O’Bannon v. NCAA and Amateurism and the Future of the NCAA in College Athletics, Oxford, Mississippi (Oct. 2013).

Arbitration Law Update, Presenter, American Bar Association, Section on Dispute Resolution, Miami, Florida (2014).


Presentations An Opening Plenary on Closing the Deal, Presenter, Negotiations: Nuts and Bolts Conference, King County ADR Program (upcoming Oct. 2014).


Doping and the Culture of Sport Symposium, Moderator and Symposium Organizer, Pepperdine University School of Law, Malibu, California (Oct. 22, 2013).

Advanced Negotiations: Skills Strategies and Ethics, Presenter, Federal Dispute Resolution Conference, San Francisco, California (July 2014). Five Forms of Stealth Empathy for Commercial Mediators, Presenter, International Academy of Mediators “West Coast Stories” Conference, Santa Monica, California (May 2014). Storytelling as a Mediator Intervention, Presenter, American Bar Association Section of Dispute Resolution Section Annual Spring Conference, Miami, Florida (Apr. 2014). Presenter, Mediating the Litigated Case in Entebbe, Uganda (Mar. 2014). He Said, She Said: A Mediator’s Approach to Memory Errors, Presenter, Northwest Dispute Resolution Conference, Seattle, Washington (Mar. 2014).


Negotiating a Compensation Package, Presenter, Women in Hollywood: 100 Years Negotiating the System (Nov. 2013). Presenter, Mediating the Litigated Case in Washington, D.C. (Sept. 2013). Women and Negotiation: Skills of Effective Negotiators, Presenter, Women Lawyer Association of Los Angeles, Luncheon Speaker Series (July 2013).


Other Activities Founding blogger for the American Enterprise Institute’s (AEI) blog. American Broadcasting Companies, Inc. v. Aereo, Inc. - Post-Argument SCOTUScast, Speaker, detail/american-broadcasting-companies-incv-aereo-inc-post-argument-scotuscast (Apr. 2014).

L A W. P E P P E R D I N E . E D U


Oral Argument Presented oral argument before the California Supreme Court in People v. Williams, a capital case.

PAUL L. CARON Caron was named president of the board of directors of the Center for Computer-Assisted Legal Instruction (CALI) and member of the LexisNexis Law School Publishing Advisory Board. He served as series editor for two book series: Graduate Tax Series (LexisNexis) and Law Stories Series (Foundation Press); editor of three tax journals published by the Social Science Research Network (SSRN); and publisher and editor-in-chief of the Law Professor Blogs Network. For the eighth year in a row, Accounting Today named Caron one of the 100 Most Influential People in Tax and Accounting. For the sixth year in a row, the ABA Journal named his TaxProf Blog one of the 100 best law blogs.

Other Activities In June 2014, during his 14th trip to Uganda since 2010, Gash led a team of 10 lawyers and 14 law students to the Luzira Maximum Security Prison as part of an effort to assist in reforming Uganda’s criminal justice system.

Quoted in the New York Times, Science Magazine, the Journal of the American Veterinary Medical Association, and other publications regarding animal legal personhood lawsuits. Professor Cupp’s views regarding animal legal personhood issues were also highlighted in a National Geographic Daily News interview with author and science journalist David Grimm.


Presentations Throughout the spring semester, Gash was invited to speak at more than 10 colleges and universities around the country about Pepperdine’s Global Justice Program.


Following Defeats, Anti-Sharia Law Supporters Revert to Sneaky Tactics, National Law Journal, Sept. 9, 2013 at 39. Religion’s Wise Embrace of Commerce, First Things, Feb. 17, 2013 (web exclusive).

CHRISTINE C. GOODMAN Implicit Bias and Income Inequality for Female Attorneys, Panelist,California Women Lawyers Annual Conference Celebrating 40 Years of Advancement Strategies for Success, Los Angeles, California (May 16, 2014). Maximizing the Benefits of Diversity in the Profession, Co-Presenter, San Fernando Valley Bar Association’s 17th Annual MCLE Marathon, Tarzana, California (Jan. 17, 2014). Having Your (Liberal) Voice Heard in a Conservative Environment, Presenter, American Constitution Society Meeting, Pepperdine University School of Law (Oct. 24, 2013). L. A. County Bar Association Dialogues on Freedom, Copresenter, University High School, October 23, 2013.


Media Appearances

There Is Another Way to Get a “Get,” The Forward, Oct. 25, 2013 at 7.


Other Activities Guest blogger on Prawfsblawg. com (June 2014).


Op-eds America Doesn’t See Its Religious Minorities, The Forward, page 7, May 23, 2014. Implied Consent: A Proposal on For-Profit Conscience, First Things, March 25, 2014 (web exclusive). Obamacare and Religious Rights in a For-Profit World, Los Angeles Times, March 18, 2014 at A11.


Media Commentary Why Some Rabbis Are Insisting: Get the Prenup Before You Marry, St. Louis Post-Dispatch, January 25, 2014. Divorce in Orthodox Community Can Be Brutal, Degrading, and Endless, Newsweek, November 12, 2013. In Victory for “Chained” Wives, Court Upholds Orthodox Prenuptial Agreement, The Forward, Feb. 15, 2013.

Awards Professor of the Year (2013-2014) Dean’s Award for Excellence in Scholarship (2013-2014)

KHRISTA JOHNSON Invited to present scholarly articles as part of workshops held at the University of Miami in 2013 and at American University in 2014 in association with the Junior Tax Group (a highly selective group for pre-tenure tax faculty across the nation) Selected as new contributing editor for the Nonprofit Law Prof blog as a result of scholarship in area. Elected to the executive committee of the AALS Nonprofit and Philanthropy Law Section. Member of New York Univeristy’s National Center on Philanthropy and the Law’s (NCPL’s) Philanthropy Professors Network and participant in NCPL’s annual conference, which draws leaders from academia, practice, and the nonprofit community.



Other Activities


Voting Rights Under Fire? The Value of a Vote PostShelby County, Panelist, AntiDefamation League and the Orange County Bar Association, Newport Beach, California (Jan. 2014). Voting Rights Act, Panelist, Gender, Race, Identity, and the Law in our Lives, California State University Northridge (Oct. 2013).

Panelist, Conference on Originalism and the Good Constitution; University of San Diego School of Law (Apr. 11, 2014). Panelist, Symposium: The Structure of Standing at 25; University of Alabama School of Law (Feb. 22, 2013).


Other Activities Presentation by Becky Norton Dunlap, Welfare Reform: the Government’s War on Poverty, Commenter, Pepperdine Federalist Society (Jan. 15, 2013). Freedom and Financial Markets, Colloquium Participant, Federalist Society and Liberty Fund, Denver, Colorado (July 26-27, 2013).


Presentations Ethics and the Allure of Social Media, Speaker, Lewitt Hackman Law Firm, in Encino, California (Oct. 1, 2013).

Presentations Trends in Arbitration and ADR Practice, Annual Meeting, American College of Construction Lawyers, Scottsdale, AZ (Feb. 21, 2014). Presenter, The PUCAT / Straus Survey of ADR Usage by Public Utility, Communications and Transportation Industries, Presenter, ABA PUCAT Council Meeting, Phoenix, AZ (Oct. 31, 2013).

Wendel has received invitations to conduct his academic success workshop in the fall at Santa Clara Law School, Notre Dame, Harvard, DePaul, Washington University in St. Louis, and University of Detroit Mercy School of Law.


Presentations Independent Film and Television Alliance Arbitrator Training Legal Developments, Presenter, American Film Market, Santa Monica, California (Nov. 2014).

Media Appearances Radio Interview, The NBA and Clippers Owner Donald Sterling, Commentator, Voice of America (May 1, 2014) ( audio/406348.html). Interview, Procedural Issues in Sex Abuse Case Against Hollywood Directors, Commentator, Los Angeles Times, (Apr. 30, 2014). TV Interview, NBA Sanction of Clippers Owner Donald Sterling, Commentator, CBS Los Angeles (Apr. 29, 2014).

PETER T. WENDEL Wendel spent the 2013-2014 academic year visiting at Santa Clara Law School, where he received the Student Bar Association’s Professor of the Year Award. He also spent three weeks over the semester break teaching an introductory class on American Property Law and Law and Economics at the University of Lyon in France, and is teaching again this summer at the University of Augsburg in Germany.

This is a partial list. For more faculty writings visit:


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After three decades on the faculty of Pepperdine University School of Law, professor Janet Kerr (‘75, JD ’78) has retired from teaching. In 1983 then-dean Ronald Phillips invited the 1978 School of Law and 1975 Seaver College alumna to join the law faculty. Over the next 30 years, Kerr would go on to serve as an associate dean of academics, launch a successful center for entrepreneurship, and become one of Pepperdine’s most beloved teachers and mentors, winning the University’s Luckman Distinguished Teaching Fellow award twice. She was the first occupant of the School of Law’s Laure Sudreau-Rippe Endowed Chair and the Distinguished Alumna for Seaver College in 1994. Kerr now holds the title of Professor of Law Emeritus. FACULTY MEMBER AND ASSOCIATE DEAN

JANET KERR Architect of Palmer Center, Retires After 30 Years By Tom Inkel

“It is widely known that Professor Kerr has been one of our most beloved and influential faculty members,” says Phillips, now senior vice chancellor and School of Law Dean Emeritus. “She reflects so very well the values that Pepperdine stands for. Her enthusiasm for teaching and mentoring has been impressive, inspiring, and contagious. Professor Kerr has not only taken a very personal interest in students while they were enrolled in law school, but has continued to assist them in all sorts of ways long after they have graduated.” While Kerr taught a variety of classes during her tenure at Pepperdine, she was perhaps known best as the dynamic, classroomroaming “chief executive” of Corporations. Relationships formed during and after her classes extended long after students graduated, resulting in a far-reaching network of friends at some of the best-known companies and firms in the world. One such alumna, Laure Sudreau-Rippe (JD ’97), would go on to establish the first alumna-endowed chair at the law school and select her former mentor Kerr as the initial recipient. “My students made my life rich and full of purpose,” Kerr says. “It has been an honor to be part of their lives.”



Nation’s Only Law School-Hosted Judicial Clerkship Institute Convenes for 14th Year

Kerr also published many articles in noted law reviews, including one coauthored with Alessandro Casati. “We developed a new economic theory integrating quantum physics which is still being widely studied,” Kerr notes.

On March 13-14, 2014, Pepperdine University School of Law hosted the 14th annual William Matthew Byrne, Jr., Judicial Clerkship Institute. The event continued school’s tenure as the only law school in the country to sponsor an Judge William Matthew Byrne, Jr. annual conference on the topic of federal judicial clerks. This year’s conference attendees included 137 clerks, 16 judges, and professors from six law schools. The keynote speaker was the Honorable Thomas F. Hogan, United States District Court for the District of Columbia.

From 1987 to 1990, Kerr served as associate dean of academics. Kerr describes a dramatic increase in bar-passage rates during this period, calling it one of her proudest achievements. PALMER CENTER FOR ENTREPRENEURSHIP AND THE LAW In 2000 Kerr realized one of her longstanding dreams with the launch of the Center for Entrepreneurship and the Law. Under Kerr’s leadership, the center was endowed by alumnus Geoffrey H. Palmer (JD ’75), a highly successful real estate entrepreneur. In 2007 Nobel Laureate Dr. Muhammad Yunus dedicated a microfinance program run under the Palmer Center’s auspices for several years. The Palmer Center founded the Pepperdine Journal of Business, Entrepreneurship, and the Law. Over 500 students have completed the center’s innovative 16-unit certificate program, cited by U.S. News & World Report in 2012 as an example of law schools responding to a need for entrepreneurial lawyers. Ultimately, Kerr served as the center’s executive director until her retirement. She has been succeeded by David Feingold, a senior real estate finance executive with over 30 years of experience, and by professors Rob Anderson and Ahmed Taha, who serve as faculty directors.

The institute was planned by director of the Byrne Judicial Clerkship Institute and associate professor of law Naomi Goodno in cooperation with the Federal Judicial Center (FJC) and the American Bankruptcy Institute (ABI), which sponsored bankruptcy and career clerks to attend. “A huge thank-you to all the judges, professors, and participants of JCI 2014,” said Goodno. “It continues to amaze me that judges from across the country give so freely and sacrificially of their time to train law clerks. It is a great privilege to work alongside these judges and to partner with the Federal Judiciary Center and the American Bankruptcy Institute to help prepare these future legal leaders.”

Kenneth Starr, who was dean of the School of Law when the Palmer Center was endowed in 2006, recalls Kerr’s enthusiasm for the program and her students. “Janet’s dedication to envisioning and establishing the one-of-a-kind combination of entrepreneurship and legal studies was equaled only by her dedication to mentoring and inspiring the students she loved so dearly.”

In the past 14 years, students from over 130 law schools—clerks for more than 320 judges—have been able to attend the program, making it a unique resource for promoting the administration of justice in federal courts. Two of the federal judges in attendance this year were Pepperdine alumnae: the Honorable Beverly R. O’Connell (JD ’90), United States District Court for the Central District of California, and the Honorable Jennifer Dorsey (JD ’97), United States District Court for the District of Nevada.

Today, Kerr is serving as chief strategy officer for her sixth technology company. She also sits on the board of several publicly held companies, including La-Z-Boy Furniture, Tilly’s, and an affiliated mutual fund of the TCW Group. In addition to her status as Professor of Law Emeritus, she is assisting Phillips with the establishment of an endowed scholarship in her name at her alma mater. “Professor Janet Kerr was an exceptional teacher and leading innovator in the area of entrepreneurship and the law,” says Dean Deanell Tacha. “Her vision for the Palmer Center for Entrepreneurship proved her prescient about the trend in legal education to integrate legal and business principles into an experiential opportunity for students. The Pepperdine School of Law owes much to Professor Kerr’s contributions and unflagging dedication to the school and our students.”

“After having attended the Byrne Judicial Clerkship Institute, I am going to require my future law clerks to attend,” said O’Connell. “It provides law clerks with a unique educational opportunity and the platform to succeed as a federal law clerk.”


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Straus Institute Ranked Number One

in Dispute Resolution for 10th Consecutive Year By Gareen Darakjian

THE SCHOOL OF LAW’S STRAUS INSTITUTE FOR DISPUTE RESOLUTION was ranked the number one dispute resolution program in the nation by U.S. News & World Report for the 10th consecutive year. The remaining schools in the Top 5 for 2014 are Harvard University, University of Missouri-Columbia, Hamline University, and Ohio State University (Moritz). Tom Stipanowich, academic director of the Straus Institute, William H. Webster Chair in Dispute Resolution, and professor of law, explains, “At a time when more and more law schools and academic institutions worldwide are trumpeting their programs and offerings on mediation, arbitration, and conflict management, it is gratifying (and humbling) to have been identified by our peers among the top programs in our burgeoning field for 10 years in a row. The Straus Institute’s academic offerings are as broad and deep as any in the world.” The Straus Institute was established in 1986 as the first dispute resolution program in the Southwest. From the beginning, the institute has recruited prominent full-time faculty and practitioners from throughout the U.S., Canada, Latin America, and Asia. Straus offers two tracks of training: professional training programs and academic programs including a certificate, a master’s degree (MDR), and an LLM in dispute resolution. In 2004 Straus launched the undergraduate certificate in conflict management, a joint enterprise between Straus and Seaver College of Pepperdine University. Last fall Straus launched a new LLM program with a concentration in international commercial arbitration. PEPPERDINE LAW

Straus now offers more than 40 different courses in dispute resolution, including negotiation, mediation, arbitration, labor, entertainment dispute resolution, dispute resolution ethics, cross-cultural conflict, psychology of conflict, and other areas. Courses are taught by six full-time Pepperdine professors, 22 local adjuncts, and 35 adjuncts and visiting faculty from around the world. In 2007 Straus acquired the world’s leading library on conflict resolution from the American Arbitration Association (AAA), consisting of more than 24,000 titles. The AAA library includes titles on subjects ranging from international arbitration to consumer disputes and health law to the history and growth of public and private dispute resolution practices in the U.S. and abroad. In recent years, Straus has launched the PACIS Project in Faith-Based Diplomacy. In consultation with governments and religious leaders, the PACIS Project addresses identity-based conflicts that exceed the grasp of traditional diplomacy by combining religion with the practice of international diplomacy through an innovative model of faith-based reconciliation. Working with leaders in policymaking circles, foreign ministries, national security agencies, religious denominational communities, and humanitarian nongovernmental organizations, the project has already brought about tangible fruit in the United States, Sudan, Kashmir, and recently in the Arab and Israeli spheres of influence. Since 1995 Straus has enrolled Fulbright scholars from around the world in addition to Muskie Fellows and Weinstein International Fellows, and Rotary International Scholars. 34


Graduates Inaugural Class Last fall Pepperdine welcomed 14 international students to the new concentration in international commercial arbitration, offered as part of the LLM in dispute resolution. This inaugural class included students from Ghana, South Africa, China, Switzerland, United Kingdom, Sweden, Saudi Arabia, Panama, and India. Led by Professor Jack Coe, the new program featured leading experts and faculty from law firms and organizations across the globe, including Freshfields Bruckhaus Deringer, Jones Day, King & Spalding, and the World Bank. As part of the practice portion of the program, students competed in pre-moot

competitions in February at the University of San Diego and Pepperdine University School of Law. These prepared participants for the LLM International Commercial Arbitration Moot Competition at American University in Washington, D.C., and the VIS Competition in Vienna, Austria. In addition to the international commercial arbitration program, students can graduate with a general LLM in dispute resolution and elect to declare a concentration in mediation, arbitration, or litigation. Beginning in Fall 2014, students are also able to declare a concentration in international commercial law and arbitration (ICLA). Created in response to a growing interest in business law and arbitration, this concentration will allow international students the opportunity to take more business law courses as electives of the LLM program. 35

Pepperdine has long been considered an elite forum for training and discussion of international commercial arbitration. In recent years, the School of Law has hosted a number of events including: the Floyd Landis/USADA arbitration; the Institute for Transnational Arbitration (ITA) Winter Forum; the advisors and reporters of the American Law Institute project on the Restatement of the Law (Third): The U.S. Law of International Commercial Arbitration; the Foreign Direct Investment Moot; an arbitrator accreditation program for arbitrators organized by the Chartered Institute of Arbitrators; visits by officers of the American Society of International Law; career opportunity programs organized by the ABA Section of International Law; and a mock arbitration appellate case argued by the former solicitor general of the United States. L A W. P E P P E R D I N E . E D U



Women have played important roles in the entertainment industry from its earliest days,

Actress Sharon Lawrence

Producer Suzanne de Passe

Historian and author Cari Beauchamp

Director Lesli Linka Glatter

achieving success as artists and attaining leadership positions in the industry. Yet significant challenges still exist. “Women in Hollywood: 100 Years of Negotiating the System,” was held November 15 to 16 at the School of Law and addressed the issues facing women individually and collectively in the entertainment industry. “Women in creative, business, and legal roles still face a scarcity of opportunities in entertainment,” said Thomas J. Stipanowich, professor and academic director of the Straus Institute for Dispute Resolution. “We hope this event helped advance the discussion on how to manage conflicts and relationships, both personal PEPPERDINE LAW

and professional, in order to successfully negotiate the system.” The two-day symposium, cosponsored by the Straus Institute and the Pepperdine University’s Center for Entertainment, Media, and Culture, was planned by leaders from the Women in Film Foundation, Women in Film New York, Women in Film Los Angeles, Lions Gate Entertainment, Universal Studios, CORE Media Group, and River Road Entertainment. More than 20 panelists and speakers representing Hollywood’s top voices provided critical guidance for women in managing conflicts and relationships in their careers and personal lives. Guests included Nell Scovell, coauthor of Sheryl Sandberg’s Lean In, Brenda Chapman, writer and director of Brave, Lesli Linka Glatter, executive 36

producer and director of Homeland, and Melissa Rosenberg, screenwriter of the Twilight Saga film series. Discussions encouraged women in Hollywood to identify sources of resistance to greater opportunities for women and set a collective action agenda aimed at altering the landscape for the next wave of women in the entertainment industry. An evening reception, “Lean In: Honoring the Next Wave of Hollywood Women Leaders,” concluded the symposium. The Women in Hollywood symposium was the final event in Pepperdine University’s “Hollywood Visionaries and Beyond” series, a two-month-long exploration of the culture of faith, family legacies, and the entertainment industry. Featuring film screenings, panel discussions, a library exhibit, and a celebrity toast and benefit, the series explored how the aspirations of Jewish immigrants became the celluloid dreams embraced by audiences around the world. Hollywood Visionaries and Beyond ran through fall 2013 and was supported by the Brenden Mann Foundation, which honors the legacy of Hollywood producer and theatre magnate Ted Mann.

A Woman Inspiring Change Harvard Law Recognizes Professor Knaplund in

In 2014 it doesn’t make sense for children born of assisted reproduction to be denied their rights.

International Women’s Day Exhibit


By Tom Inkel

In honor of International Women’s Day 2014, Harvard Law School announced that it had selected Pepperdine law professor Kris Knaplund as one of its “Women Inspiring Change.” The recognition placed Knaplund in the company of female leaders such as Supreme Court associate justice Sonia Sotomayor and U.S. senator Elizabeth Warren. Knaplund was nominated for the honor by Harvard Law librarian

read SCOTUSblog—a private blog following developments at the Supreme Court of the United States—hired Knaplund to write three articles on the recent Supreme Court decision of Astrue v. Capato, which dealt with the question of whether a child conceived years after a wage earner’s death is entitled to Social Security survivor benefits. The Denver University Law Review published Knaplund’s article “Baby Without A Country: Determining Citizenship for Assisted Reproduction Children Born Overseas” in summer 2014. And closer to home, the School of Law first-year class named Knaplund the “1L Professor of the Year” for 2013-2014.

“Professor Knaplund inspires me with her genuine warmth and tireless willingness to mentor those who follow her,” said Allison in her nomination letter.

Knaplund, who teaches Property, Wills and Trusts, Advanced Wills and Trusts, and the Bioethics Seminar, says her interest in ART began while exploring the implications of reproduction technology for the Rule Against Perpetuities, a common law doctrine limiting distribution of property interests. The rule presumes that children will be born within a person’s lifetime, which is no longer true.

The honor was one of several garnered this year by Knaplund, a leading expert in the rapidly growing field of assisted reproduction technology (ART). The widely

“The purpose of the rule is to prevent interest in [gametes] floating around for centuries,” she explained in a recent interview. “Traditionally, a woman can’t have children

and former student Jennifer Allison (JD ’07).


after her death. With assisted reproduction, that’s not the case. A person’s gametes can be still be retrieved after they die.” In her Denver University Law Review article, Knaplund describes the plight of three American women who lived abroad and faced difficulty conceiving children naturally. They received anonymous embryos from donors, gave birth, and were listed as the mother on their child’s birth certificate. The mothers then had to take blood tests to prove their biological connection to their babies in order for their children to become citizens of their host countries, a rule established in 1952. The test results showed that they were not genetically related to their children, and their children were denied citizenship. Knaplund’s article then makes recommendations for how the State Department should proceed in such circumstances. “In 2014 it doesn’t make sense for children born of assisted reproduction to be denied their rights,” says Knaplund. “We have to stop trying to force them into the same framework that we use for children who are not. We need a different framework.” L A W. P E P P E R D I N E . E D U



On Wednesday, April 16, Lt. General Flora Darpino of the United States Army gave a special presentation to Pepperdine law students. Darpino is the first woman to lead the Judge Advocate General’s (JAG) Corps. She visited campus at the invitation of School of Law professor Ann Ching, a former active-duty JAG officer. Among her years of service, Darpino served overseas in Germany and in Iraq during the war. She received several awards and medals, including the Defense Superior Service Medal, the Legion of Merit with One Oak Leaf Cluster, the Bronze Star, the Meritorious Service Medal with a Silver Oak Leaf Cluster, the Army Commendation Medal, the Army Achievement Medal, and the Iraq Campaign Medal. Darpino is the first “directcommission” lawyer to head the U.S. Army JAG Corps, having had no previous military experience when she joined JAG. During her presentation, the general revealed that her original intention in attending law school had been to become a corporate transactional attorney and raise a family. But after law school, her husband, also a lawyer, began serving a four-year commitment to the army as an ROTC officer. After considering the legal experience opportunities afforded by JAG, Darpino opted to join the army as well, not intending a long-term stay. They have now both been in the Army JAG Corps for nearly three decades and have two daughters. Darpino’s 2013 promotion meant that she now outranked her husband, forcing PEPPERDINE LAW

his transfer to another command to comply with rules regarding conflict of interest. In keeping with the general’s fascinating backstory, her talk focused on “work-life balance.” Darpino expressed dissatisfaction with the term. “[The phrase] suggests we’re walking a tightrope over an abyss,” she said. Instead, she said that professionals are constantly addressing both challenges out of “one big bucket,” and the goal should be to prevent exhausting that common resource. The best technique for accomplishing that is prioritization, she said. On that note, she had two pieces of advice. “You must take care of yourself,” she said, describing a careful routine ranging from running every morning to talking daily with loved ones, even Skyping nightly with her family from a combat zone. In addition, she encouraged students to “not feel guilty about what you must let go,” noting that guilt can continue to distract and sap resources long after the decision has ostensibly been made. Darpino’s presentation closed with a Q&A session with students, led by then 3L Joe Cardosi, one of 21 School of Law students who are former members of the United States military. Among the issues discussed was the evolving role of women in the army. The general spoke highly of the army’s ability to adapt, citing examples like the army’s response to the government’s recent decision to allow women in combat roles. Rather than simply creating a new physical standard for women in the combat arms, the army opted to do an exhaustive review of all of its physical standards, with the intent to draft new policies reflecting the actual demands of the roles rather than screening either gender by arbitrary measures. 38


Although the president of the United States and Congress claim that tax reform is a priority for the coming year, the path forward is uncertain given partisan gridlock in Washington, D.C., and an unusually large number of domestic and international crises. To address these and other concerns, the Pepperdine Law Review and Tax Analysts, the leading provider of tax news and analysis for the global community, hosted “Tax Reform in a Time of Crisis,” a symposium that featured panel discussions on individual/estate and gift tax reform, as well as on institutional perspectives on tax reform in a time of crisis. The symposium featured a keynote address by Joseph Bankman, Ralph M. Parsons Professor of Law and Business at Stanford Law School, with commentary by Edward Kleinbard, professor of law at USC Gould School of Law. Bruce Bartlett, former deputy assistant secretary of the treasury and tax author (The Benefit and the Burden: Tax Reform—Why We Need It and What It Will Take) and journalist (New York Times and Tax Notes), delivered the luncheon address. The symposium also included panel discussions on “Individual/Estate and Gift Tax Reform” and “Business/ International Tax Reform,” as well as on “Institutional Perspectives on Tax Reform in a Time of Crisis.” The sessions were streamed live at the School of Law’s LiveStream and panelists answered questions from viewers throughout the symposium.

Pepperdine University School of Law Pays Back a Debt of Gratitude to Student Veterans Joe Cardosi

By Ann B. Ching

If you had met Joe Cardosi (JD ’14) last year, you might have quickly assumed that he was a typical Pepperdine law student. Intelligent and easygoing, wearing flip-flops and slinging a backpack over his shoulder—he seemed equally ready for the classroom or a Malibu beach. Joe Cardosi was anything but typical, however. A few years earlier, he was First Lt. Cardosi, U.S. Army, leading troops in Afghanistan and earning a Bronze Star medal for his combat service. Although Joe is an extraordinary young man, at Pepperdine his story is not all that uncommon. Last year, Pepperdine counted 21 men and women who have served in the armed forces among its student population. For fall 2014, the School of Law offered admission to another 40 veterans. Key to Pepperdine’s successful effort to attract student veterans is the law school’s full participation in the Yellow Ribbon Program. Although the Post-9/11 GI Bill provides greater benefits than its previous iterations, covered tuition is still limited to in-state tuition at public schools and a current national cap of $19,198.31 per year at private schools. Therefore, out-of-state students or those attending private schools may have to pay for a significant portion of their tuition. That is where the Yellow Ribbon Program comes into play. Under this program, universities agree to fund a portion of the uncovered tuition, and the Veteran’s Administration will match the university’s contribution dollar-for-dollar, up to the total cost of tuition and fees. Pepperdine contributes fully to the Yellow Ribbon

Program. As a result, eligible veterans can attend Pepperdine School of Law at no personal expense. For the Pepperdine student veterans receiving Yellow Ribbon funds, the value of the program far exceeds its cost. “I didn’t think I could ever go to Pepperdine,” says Scott Sasser, Marine Corps veteran and president of Pepperdine’s Veterans Legal Society. “If it weren’t for the Yellow Ribbon Program, I wouldn’t be here.” Fellow U.S. Army veteran William Kellogg echoes this sentiment. “Pepperdine was the only California law school I applied to where I could get full tuition covered.” Student veterans also appreciate the options that the Yellow Ribbon Program provides. According to Jackie Rodgers, an admitted student and army veteran, “With the Yellow Ribbon Program, I could set aside concerns about cost and simply ask, is this the right school for me?” Adds army veteran Jason Gould, “With tuition covered I can look for the job I want, where I can best use my skills, and not just a job I have to take to pay off my student loans.” 39

For Pepperdine, the increasing presence of student veterans benefits the entire law school community. Deanell Tacha, dean of the School of Law, notes that student veterans “strengthen our common understanding of the value of service to country and the quality of the people who are serving this nation.” Veterans also play a significant role as mentors to their classmates. “Student veterans are particularly helpful to our professional formation efforts,” according to Al Sturgeon, dean of students. “At Pepperdine, we strive to teach respect, service, dignity, leadership, and a strong work ethic, and our student veterans are often our very best teachers simply by their example.”

© 2014 PROF. ANN B. CHING. This article, used with permission from the American Inns of Court and Ann B. Ching, is adapted from an article originally published in the July/August 2014 issue of The Bencher, a bimonthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.

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2013–2014 Apellate & Trial Teams Competition (names in photo order left to right)



Emily Suhr/Jacob Franz/ Stephanie Lamphere

Morgan Franz/Jacob Franz/ Ashley Cook Goff/Stephanie Lamphere



Jacob Franz Best Advocate


David Moreshead Third-Place Advocate


Zach Tafoya


Best Oral Advocate

Emily Suhr/Lilit Vardanian Best Brief and Semifinalists


Amanda Martin/Trevor Goossen/ Ashley Cook Goff Semifinalists


Luke Baty/Melissa Ardo Finalists


Jonathan Moore/Shannon Pagel/ Austin Ward/Nicole Cid Semifinalists PEPPERDINE LAW


Professor Nancy McGinnis (JD ’85) Retires Reflects on Moot Court and Career How did you get involved with moot court?


Prof. Harry Caldwell/Laura Wheat/ Adrienne Patterson/Brandon Ortiz/ Eddy Silverman/Prof. Michael Crowe Finalists

It kind of snuck up on me. In the early ’80s, professor Harry Caldwell supervised all appellate and trial competition teams, and associate dean Cynthia Greer (EdD ’88, MDR ’98) oversaw the Moot Court Board and intra-school competitions. I came back to the law school to teach Legal Research and Writing (LRW) full-time in 1988. In fall 1989 someone, I forget who, asked me to coach Rick Sheldon (JD ’90) and Marlene (Landini) Shugart (JD ’90) for a competition in Chicago. The next year, I coached Rick Davis (JD ’92), Jack Harding (JD ’92), and Marcela Howell (JD ’92) to the ABA National Appellate Advocacy Competition. By the 1992-1993 school year, I was in charge of the National Criminal Procedure team of Lisa Kanovsky (JD ’93) and Dan Pascucci (JD ’93), the National Moot Court team of Barbara Plate (JD ’93), Shirley Calloway (JD ’93), and Liza Karsai (JD ’93), and the ABA NAAC team of Pam Davidson (JD ’94) and John Niedermann (’91, JD ’94). I was hooked. By 1993-1994, I was coaching most of the appellate team competitions and some of the ADR competitions. When Dean Greer left, the Moot Court Board and intraschool activities were added to my list. While I have been deeply committed to our exceptional LRW program since 1988, I readily admit that my 20-year involvement with the moot court program has been the whipped cream, nuts, and cherry on top of my career here! Will you be involved with moot court [or Pepperdine] after you retire? Most definitely! As an alumna, I put myself into the moot court alumni volunteer pool to help out wherever I can: judging Pepperdine competitions, scoring briefs, coaching interschool teams. In fact, Patty [Hayes, student support services coordinator] allowed me to retire only if I promised to keep working on moot court!


Prof. Sharon Appelbaum/ Allison Sprunger/Amanda Pitroff/ Adrienne Patterson Finalists


Samantha Placeres/Nicole Cid/ Iyman Strawder/John Adams

Can you share some favorite moments from your career? Funny stories about things that happened preparing for and competing in moot court competitions are plentiful: wacky judges, travel snafus, wardrobe malfunctions, etc. Although many of them were not funny at the time, we usually managed very quickly to find the humor, even in the most frustrating, nonsensical situations. In my overall career here, I would have to say one of the most meaningful moments for me happened last August. Judge Jennifer Dorsey invited me to Las Vegas for her informal swearing in as a judge for the Federal District Court in Nevada. Jennie was an LRW student of mine in 1994-1995. She was an excellent writer who worked hard to become even better. After her graduation in 1997 (a class that I admit is my favorite class of all time), she moved back to her hometown. We stayed in contact and our friendship grew. It was incredibly special for me to be there with her family and her new colleagues as she took the oath of office. In January I went to Pasadena to watch her sit by designation on a Ninth Circuit panel. It was thrilling to see one of my “kids” succeed and excel in her chosen field.



L A W. P E P P E R D I N E . E D U


The School of Law Remembers Grant Adamson On August 6, 2013, Grant Adamson, a descendant of one of Malibu’s founding families and founding member of Pepperdine’s Crest Advisory Board, passed away after he and his family were involved in a tragic hot-air balloon accident while on vacation in Switzerland. His wife, Terry, then the Distinguished Jurist in Residence at the School of Law, sustained lifethreatening injuries and she, along with the couple’s two children, Lauren and Megan, required multiple surgeries. “It was the prayers that made the difference in our healing process,” says Terry. “We really believe that prayers made a difference, and it was Pepperdine that started the international prayer chain. It was incredibly helpful for all of us. My heart is very much with Pepperdine.” Terry has been part of the Pepperdine family for 20 years, having started teaching at the law school while a commissioner for the Los Angeles Superior Court in Malibu. For the last five years, she has been a trial team coach, helping head coach Harry Caldwell guide students through challenging training, a role in which she continues to serve. Most recently, she was appointed director of externships, after spending five years as professor of the externship workshop. In 1968 Grant’s family, the Adamsons, presented Pepperdine with 132 acres of land to construct the Malibu campus, a gift that has come to be known as “The Malibu Miracle.” As the founding member of Pepperdine’s Crest Advisory Board, Grant was instrumental in bringing the local community and the University closer through community outreach projects and events. At Pepperdine, Grant provided mentorship to students through various programs and casual get-togethers. Grant and Terry’s eldest daughter, Lauren, graduated from the Graziadio School of Business and Management in August with a master of business administration degree, while Megan, a rising senior as Seaver College, completed a semester abroad this summer and will return to Malibu in the fall.

Otto Cipolla (center), Preceptor of Year, with his “preceptees” at this year’s School of Law Dinner.

Preceptor of the Year: Otto Cipolla, Jr. By Tom Inkel

During School of Law annual dinner, dean Deanell Tacha announced the 2013–2014 Preceptor of the Year: Otto Cipolla, Jr. (JD ’83). As a preceptor, Cipolla mentored first-year law students throughout the academic year, providing support and advice during this important transitional year. Despite the many nominations received for this year’s honor, it was clear early on in the selection process that Cipolla had accomplished something unique with his students. “The Preceptor of the Year Award recognizes outstanding service by one of our preceptors: a supportive group of practicing attorneys and judges who mentor one or more first-year law students at Pepperdine,” Dean Tacha noted. “Most of our preceptors are assigned one, maybe two students to mentor. Our Preceptor Program director, Dean Al Sturgeon, admits we have ‘lost count’ of the number of students who consider themselves ‘adoptees’ of this amazing alumnus! I’ve read the nominations and can assure you they would bring tears to your eyes.” Among the excerpts from the student nominations for Cipolla were comments such as the following: “From allowing me to use his office space to study for finals, to taking our mentor group out to dinner every couple of weeks, to giving me thoughtful career advice, he has done so much to make my law school experience both enjoyable and comfortable.” “Most importantly,” wrote another, “he represents everything that Pepperdine stands for: a person who overcame the odds and does good things for people on a daily basis. He is truly one of the most unselfish people I know.” “He offered his office as a quiet, off-campus study option, and supplied my entire study group with pizza during one of our classes,” said another preceptee. “He fosters conversation amongst us regarding learning techniques and general tips for success.” Cipolla is a partner at Cipolla, Calaba, Marrone, Wollman & Silva. He has been an attorney for 27 years. He completed his undergraduate work at Seton Hall University in New Jersey, then earned his juris doctor from Pepperdine University in 1983. This was his second year as a preceptor.



School of Law Swears in Recent Graduates By Tom Inkel


On Friday, December 6, 2013, Pepperdine University School of Law welcomed 343 guests to the Caruso Auditorium for the 2013 California Bar Admissions Ceremony. Eighty School of Law graduates were sworn into the California State Bar and 58 into the United States District Court for the Central District of California. The Honorable Tricia A. Bigelow (JD ’86), presiding justice of the Second District Court of Appeal, Division Eight, administered the state oath, while the Honorable Beverly R. O’Connell (JD ’90) of the United States District Court for the Central District of California administered the federal oath. Deanell Reece Tacha, Duane and Kelly Roberts Dean of the School of Law and former chief judge of the United States Court of Appeals for the 10th Circuit, presided over the ceremony. “Today you become the lawyers who confront the issues that face our legal community and our world and say ‘Yes, I can,’” Dean Tacha told the new admittees. “You make us proud, and we endeavor to make you proud, because today we are part of the same community.” FEBRUARY BAR EXAM

The bar admissions ceremony for successful takers of February bar exams was one of Pepperdine’s largest ever. School of Law graduates enjoyed a February California bar passage rate of 92.3 percent among first-time takers. The state average was 55 percent. On June 6, 2014, fifteen School of Law graduates were sworn into the California and federal courts by fellow alumni—the Honorable Ryan J. Wright (JD ’97), Superior Court of Ventura County, and Judge O’Connell, respectively. An audience of 60 friends, family, staff, and faculty filled the Mendenhall Appellate Courtroom to observe the ceremony. Before leading the federal oath, Judge O’Connell reminded graduates of how their unique Pepperdine education will affect their transition to the professional world. “You studied at a place where values matter, where integrity matters, and where relationships matter,” she said. She recalled being accompanied by professor Shelley Saxer on an airplane to her final interview during the federal judge application process. “These folks are here for you.” PEPPERDINE LAW


“Buy a Locker” Campaign Funds Hundreds of New Book Lockers Last year, 520 new lockers were installed on the first floor of the Pepperdine University School of Law building. The new units replace older models that previously filled several areas of the School of Law building, including a large section of the main atrium itself. While the previous lockers were shared by pairs of students, the new lockers, located outside Classrooms A, C, E, and the Straus Institute offices, are now assigned to individual students. Alumni contributed funds for the lockers via a “Buy a Locker” campaign, and the new units bear plates recognizing the donors, celebrating favorite faculty, or memorializing loved ones. The new lockers are one of several cosmetic changes that have taken place around the School of Law building in recent years. Other improvements include the retrofitting of many classrooms with additional presentation equipment; the removal of a large decorative tree from the atrium; the replacement of the atrium furniture; and the installation of a large reception desk inside the law school’s front entrance.

L A W. P E P P E R D I N E . E D U


The Paradox of Expectation By John Adams (JD ’14)

Each year, the School of Law administration hears many excellent speeches from third-year students vying to deliver the commencement address. Unfortunately, only one speech may be selected. While John Adam’s was among those not able to be heard this year, you may now read an excerpt.

There is a subtle yet astonishing characteristic to the nature of expectations. Expectation serves as a floor upon which we stand to reach for dreams and goals above us. It serves as a ceiling to ensure those dreams and goals are practical. As British journalist India Knight once said, “Be realistic with your expectations. I’d really like to cuddle a unicorn, but it ain’t going to happen.”The truth about expectations is that expectations are paradoxical. As Christ said to his disciples, “From everyone who has been given much, much will be required; and to whom they entrusted much, of him they will ask all the more.” Expectations are implied, they are modeled, and they are demanded. The first time I truly began to understand the nature of implied expectancy was on a summer afternoon in Bessemer, Alabama, when I was 19. Sitting on a sun-soaked, rickety old porch swing in 90-degree heat, I listened to my 84-year-old grandmother tell me about her life in the Jim Crow South. She spoke about her life as a sharecropper’s daughter and for the first time I grasped her and her existence. Her life was one of sacrifice. Hands cracked and knuckles gnarled and twisted from arthritis. Her legs bent and bowed. Her knees calloused from praying for her family. Her face marred with wrinkles as deep as her wisdom. She was beautiful. This woman, who didn’t have an eighth-grade education, raised 13 kids. She taught them: “Do more. Be better.” Though she never said it directly to me, I knew she meant for me to “do more,” and to “be better.” She expected it of me, and at that moment I began to expect it of myself. I witnessed expectancy modeled in front of me. My father is a preacher—has been since he was 15 years. It’s all he’s ever done and all he’s ever wanted to do. My father tells the story that when he left home to attend Miles College in Birmingham, Alabama, his mother sent him off with all she could afford to give him—$50. He used that money to sustain him through his first few weeks of school. He later attended Duke University where he received his master’s degree. I cannot recall a day waking up and not seeing my father already up, working, reading, studying, praying—modeling the expectation that that $50 seed represented; the expectation



that besides being a representation of himself, that he was a representation of his mother and that now he must carry himself with dignity and respect as he honors God, his wife, and his family with his life as he fulfills his purpose and goal. The demand of expectation is one that I have experienced in more of a tangible way in the last three years here at Pepperdine than I have before in my life. “Who has been given much, much has been required …” It is not wasted on me that statistically I shouldn’t be here. It was grace that allowed me to meet Carlton Oliver 23 years ago and to reconnect with him as the director of student life and student outreach here at Pepperdine so that he could be the impetus in the process of my acceptance here in the highest academically qualified class to enroll and now graduate from this esteemed University. It was the gift of that grace that allowed me to meet Professor Jim Gash who was instrumental in aiding in making the judgment call to allow me to be accepted here, as well as a host of others who I’ve never met. My story is unique, but so are yours. All beautifully crafted to hopefully illuminate the truth that we have all been given so much. From the tutelage of the brilliant legal minds of the professors, to the sacrifices of parents, grandparents, husbands, and wives, Class of 2014 we have been given much, now much is required. There is another thing that expectation does. It surprises. As we manage our expectations new circumstances arise and craft what we expected. I’ll never forget my first day of class. It was Monday morning August 22. I woke up extremely early ready for the first day of what I expected to be an amazing journey, which it was, and a stellar academic experience, which, meh …, one outta two ain’t bad. I looked out of the window of my room here on campus and saw a deer. Just this deer and me. I thought, “This must be a sign.” I felt like Snow White. Little did I know the deer here are like four-legged pigeons … they’re everywhere. But I went to my first class not just hoping but expecting to devour Civil Procedure! Devour it I say. An hour later I walked out of Civ Pro thinking, I HATE DEER, and I hate signs! The struggle of the first year of school shocked me into an understanding of the necessity of dependency in fulfilling expectations. Dependency on prayer, advice, office hours, coffee, sleep, and you. My beloved Class of 2014, the blessing of these last three years has been in how you have served me in shaping me into the lawyer I will become. But the greater blessing was in watching how you served one another. How you mourned with those experiencing profound grief and rejoiced with those encountering immeasurable joy. How you used your precious spare time to travel all over the world to help those in less fortunate countries buttress their judicial systems. How in the notoriously competitive law school universe you regarded the person, who could prevent you from receiving that “A,” as a friend and brother- or sister-in-arms rather than competition, and never failed to give of your notes or outlines, or more importantly, yourselves. Your treatment of one another reminds me of a C. S. Lewis quote from his essay, “The Weight of Glory”:

 There are no ordinary people.  You have never talked to a mere mortal. Nations, cultures, arts, civilization—these are mortal, and their life is to ours as the life of a gnat.  But it is immortals whom we joke with, work with, marry, snub, and exploit—immortal horrors or everlasting splendors.

 This does not mean that we are to be perpetually solemn.  We must play.  But our merriment must be of that kind (and it is, in fact, the merriest kind) which exists between people who have, from the outset, taken each other seriously—no flippancy, no superiority, no presumption.


My beloved Class of 2014, the blessing of these last three years has been in how you have served me in shaping me into the lawyer I will become. But the greater blessing was in watching how you served one another. —John Adams

 And our charity must be real and costly love, with deep feeling for the sins in spite of which we love the sinner—no mere tolerance or indulgence which parodies love as flippancy parodies merriment.

L A W. P E P P E R D I N E . E D U


CLASS ACTIONS 1976 The Honorable James W. Beall has received a promotional appointment to serve as an administrative law judge II - specialist for the State of California, Department of Social Services. James has been an administrative law judge since 1999.  Richard L. Charnley has joined Arent Fox LLP’s Intellectual Property and Media and Entertainment Practice as a partner in the firm’s Los Angeles office. Jeffrey B. Diamond, of the Jeff Diamond Law Firm in Carlsbad, New Mexico, was named the 2014 recipient of the Bill Daniels Award for Ethics in Entrepreneurship. The award was presented at the 15th annual Samaritan Counseling Center’s New Mexico Ethics in Business Awards. Paul M. Konapelsky assumed the role of commodore for the Bahia Corinthian Yacht Club in Newport Beach, California.

1979 C. David Baker is the new president and executive director of the Pro Football Hall of Fame.

1981 Allen L. Thomas was recently elevated in rank to “Advocate” by the American Board of Trial Advocates, where he has been a member since 1995. He continues to practice in Long Beach, California, primarily defending public entities throughout Southern California.




Candace Carlyon announces the formation of the law offices of Carlyon & Smith, PLLC in Las Vegas, Nevada. She has been board certified as a commercial bankruptcy specialist since 1993, and also serves as a short trial judge pro tem. She chairs the ABI Southwest Bankruptcy Conference, and has been an ABI member since 1990.

Nicholas R. Andrea opened the NR Andrea Law Firm in January 2014. The firm will offer legal representation to small and mid-sized businesses and individuals in business disputes. In addition, the firm will provide legal services to clients involved in disputes regarding insurance coverage or other insurance-related issues including bad faith.


Charles Kelly Kilgore has opened the 11th Hour Trial Lawyers Group in Los Angeles. The practice targets civil or business litigation attorneys with little to no trial experience to aid them in trial or conduct the trial for them.

Don Philbin, a mediator in San Antonio, Texas, has developed Picture It Settled, a web and mobile application that uses predictive analytics to dynamically project the course of negotiations and the likely time and amount of a settlement.

1990 Kimberly Carlton Bonner was appointed by Florida governor Rick Scott as a circuit court judge for the State of Florida’s 12th Judicial Circuit on August 5, 2013. She previously served as a Sarasota County Court judge from 2002 to 2013. Peter W. Dicce is the director of athletics, intramurals, and recreation at New York University Abu Dhabi in the United Arab Emirates.

1991 President Obama nominated André Birotte, Jr., to serve on the United States District Court for the Central District of California. He has served as the United States Attorney for the Central District of California since 2010.

1992 Steve Barke received a doctor of ministry degree in May 2014 from Talbot School of Theology at Biola University in La Mirada, California, with a doctoral project designed to test the use of church discipleship as a complement to public charter schools.

1996 Nicole Calabro was elected counsel in the Compensation and Employment Law Practice at Baker & McKenzie LLP, based in New York. She assists companies with the design and implementation of international employee stock plans, providing advice on the tax, securities law, labor law, and exchange control compliance issues that arise when options, restricted stock units, or purchase rights are granted to employees.

1997 Douglas R. Hume joined the faculty of Azusa Pacific University as a member of the Department of History and Political Science and will focus his efforts in the area of legal studies. He will also serve as the school›s pre-law advisor. Ryan Louvar is now general counsel of WisdomTree Asset Management, Inc., based in New York City. Ryan L. Roney has been honored by the San Diego Business Journal as General Counsel of the Year.

Robert A. Knox was appointed to the Superior Court of California, County of Orange.


Margaret E. Koppen was named general counsel of CyraCom International, Inc., on July 15, 2013. CyraCom is a national language services company, which provides over-the-phone, on-site, and video language interpretation and document translation services. She is based in the company’s headquarters in Tucson, Arizona.




Mark T. Cramer has joined Buchalter Nemer as a shareholder in the litigation practice group. He specializes in complex litigation matters, including contract disputes, class actions, breach of contract, breach of fiduciary duty, unfair competition, false advertising, fraud, defamation, and misappropriation of trade secrets.

Carolina Watts was elected to serve as the chair of the board of directors of the Council of Parent Attorneys and Advocates (COPAA), a national nonprofit organization dedicated to protecting the civil rights of students with disabilities and their families and to promoting excellence in advocacy. She is a civil rights advocate for students with disabilities in Southern California.

1999 Andrew J. Dunbar, a partner at Sidley Austin LLP, was awarded the Elyse S. Kline Justice Award for Pro Bono Attorney of the Year.

2001 Carmen J. Cole has been appointed managing partner of Littleton Joyce in Los Angeles. She previously practiced in the Los Angeles and Atlanta offices of McGuireWoods before joining Littleton Joyce as a partner in January 2013. She is the first woman and first African American to serve as the managing partner of one of its offices. Jeffrey J. Stinnett has started his own practice, the Stinnett Law Firm, located in Ventura, California. The firm specializes in criminal defense and civil litigation, as well as real estate, employment, and administrative law.

2002 Joseph K. Mulherin has been named shareholder at Vedder Price. He is a member of the firm’s Labor and Employment Practice area in Chicago, Illinois, focusing on counseling and representing privateand public-sector employers nationwide in a variety of employment law issues, including discrimination lawsuits and EEOC investigations.

Jack L. White, a partner at Fluet Huber + Hoang PLLC, was named one of Super Lawyers’ Rising Stars for 2014.

2004 Justin A. Sanders, a partner at the Sanders Law Firm in Covington, Kentucky, is running for election to the Kentucky Court of Appeals - Sixth Appellate District, First Division this fall. Adam M. Sullivan, senior counsel of Business and Legal Affairs at Square Enix, Inc., was named the 2013 Video and Online Games Counsel of the Year by the Association of Media and Entertainment Counsel. Jed White has been named a partner in Bryan Cave’s Los Angeles office. He practices with the Commercial Litigation, Class and Derivative Actions, and Product Liability Client Service Groups. Vision Winter has been named a partner at O’Melveny & Myers, where he is currently a member of the Intellectual Property and Technology Practice within O’Melveny’s Litigation Department in Los Angeles. Vision’s practice focuses on intellectual property litigation, primarily in the electrical, computer science, and electronics fields. He has been named a Rising Star in intellectual property litigation in a survey conducted by Law & Politics Media, Inc.

2005 Joshua Best was named the next general counsel for the Foursquare Church national office (U.S.).


Daryl Binkley, attorney and founder of his own law practice in Palm Desert, California, was named the 2013 Top Lawyer by Palm Springs Life Magazine for estate planning. Amy R. Cotton was elected to partnership at Quarles & Brady LLP where she is a member of the firm’s Health Law Group in October 2013. In April 2014 she was named to the 2014 Southwest Rising Stars list in Super Lawyers. David J. Ginsberg has joined Crowell & Moring as a partner with the firm’s Government Contracts Group in Los Angeles. Sarah Beth Johnson has been elevated to partner at Fox Rothschild LLP, where her practice focuses on all aspects of labor and employment law, including providing clients with advice and defending against discrimination and retaliation claims. Kyle P. Schneberg and his wife Jennifer welcomed daughter Olivia, born on September 9, 2013. Robert T. Simon was listed as a Southern California Rising Star and featured in 2014 edition of Super Lawyers.

2006 Jamie and Ali Salimi welcomed their first child, a daughter named Madilyn Audrey Salimi, on Thanksgiving Day 2013. Jamie is corporate counsel at Trace3, an IT systems integrator headquartered in Irvine, California. Ali is the principal of Salimi Law in Irvine. K.C. Swisher, was elevated to partner at Gordon & Rees LLP in San Diego, California.

2007 Janelle L. Davis, of Thompson & Knight has been selected for inclusion in Texas Rising Stars 2014 by Thomson Reuters. Andrew P. Grau, of Hamburg, Rubin, Mullin, Maxwell & Lupin, has been elected to the board of directors of the Triangle Club of Montgomery County in Pennsylvania. Kathryn (Domet) Putnam joined Slowiaczek, Albers & Astley in Omaha, Nebraska, and concentrates her practice in the area of family law.

L A W. P E P P E R D I N E . E D U

COMMUNITY Jessica Marlow was named to Variety magazine’s list of “Hollywood’s New Leaders” as an entertainment attorney with the Beverly Hills office of Weintraub Tobin Chediak Coleman Grodin. Ehsan Zaffar will be releasing a textbook on homeland security policy in 2015 entitled Homeland Security: Foundations of Security. The textbook is for upper-level undergraduates and law and policy graduate students interested in current homeland security topics ranging from cybersecurity to immigration enforcement.

2007 Elizabeth A. Mitchell, a deputy city attorney in Los Angeles’ Police Liability Unit, successfully defended the LAPD against allegations of a property owner who claimed that LAPD caused significant damage to her property while executing a search warrant.

2008 Bryan K. Lang has joined the subdivisions services group at Jackson DeMarco Tidus Peckenpaugh. He concentrates his practice on the representation of homebuilders, contractors, developers, and owners in common-interest subdivision matters.



Monica A. Adjemian has been promoted to senior associate at Koppel, Patrick, Heybl & Philpott, where she has been practicing as an intellectual property attorney since graduating from law school.

Melissa M. Barcena has joined Northrup Schlueter APLC, a full-service law firm based in the California cities of Westlake Village and Santa Barbara, as an associate. She practices in the areas of complex business litigation and construction defect. She also practices in the firm’s appellate division.

2010 Joseph Lewis became a partner at Wooten Mischel & Lewis, managing the estate planning and taxation division. His family also welcomed their fifth child, Annalisa, on March 1, 2013. Robert O’Conner has published his first novel, Unholy Ground - A Max Steele Thriller.

2011 Nate Knapper is currently running for state representative in Michigan’s 43rd House District. He has been serving in the Michigan Attorney General’s Office.

2012 Emily A. Jung has joined the Real Estate Development and Investments Practice Group, as an associate at Winstead PC in Dallas, Texas.

Jason G. Bulbuk joined Plunkett Cooney’s Tort and Litigation Practice Group in Bloomfield Hills, Michigan. Grace D. Greenhall has joined the Litigation Section of Buchanan Ingersoll & Rooney in Philadelphia, Pennsylvania. Ryan Waggoner has joined the Trusts and Estates Group of Ice Miller LLP in Indianapolis, Indiana.

2014 Selina J. Shultz joined Duquesne University School of Law to teach the course Judgment and Decision Making for Lawyers. She is also the managing partner of The Alternative Group (“TAG”), where she regularly mediates all types of civil, business, and family matters.

Submissions for Class Actions may be e-mailed to the Pepperdine School of Law Alumni Relations Office at

In Memoriam


Professor W. Noel Keyes, former long-time member of the Pepperdine University School of School faculty, passed away at age 92 on Tuesday, March 11. He joined the faculty in 1972, when the school was located in Santa Ana, California, in a two-story frame building. After the School of Law moved to nearby Anaheim, he began the school’s clinical law program while carrying a regular teaching load. He wrote extensively on government contracts, among other topics. He was a sailor of some note. He taught at the law school until 1987, when he retired to Laguna Beach, where he and wife Jeannine had lived when the school was located in Orange County. He is survived by wife Jeannine and sons Philippe and Chris (‘78), the latter of whom is a graduate of Seaver College. Jill Meredith Curtiss (JD ’95), died on November 9, 2012. Born and raised in Grosse Pointe, Michigan, she graduated from University Liggett High School in 1988. She received her bachelor’s degree in sculpture from Miami University (Ohio), her juris doctor from Pepperdine University, and her master of laws from John Marshall in Chicago, Illinois. She practiced law in Los Angeles and moved to Denver, Colorado, in 2012 in order to be closer to family. She was 42 years old.



The Career Development Office invites you to consider Pepperdine law students or alumni for full-time, part-time, contract, or project hiring needs at your firm or organization. To discuss your current hiring needs or to start building a pool of applicants for a future opening, please reach out to either assistant dean Michael Hom (michael. or 310.506.7439) or recruiting coordinator Molly Kemper (molly. or 310.506.6459). We are excited to work with you to build upon the “Hire Pepperdine” tradition and to connect you with candidates that will help your organization thrive.

Pepperdine School of Law

Graduation 2014

THE COMMENCENCEMENT CEREMONY FEATURED Tani G. Cantil-Sakauye (above, top), chief justice of the California Supreme Court, who advised students in the commencement address to "carry compasses, not roadmaps." Also featured were Deborah S. Kwon (JD '14) (left), providing the student address; Laure R. Sudreau-Rippe (JD '97) (middle), announcing vice dean Shelley Saxer as the new recipient of the Laure Sudreau-Rippe Endowed Chair; and class valedictorian Ashley E. Goff (JD '14) (right), leading the Pledge of Allegiance.

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Pepperdine Law Vol. 34, No. 1 Fall 2014  

Pepperdine Law is the feature magazine of the School of Law, showcasing alumni and scholarship.

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