pepperdine law - vol. 30, iss. 2 (fall 2011)

Special Faculty editionDiscover the most recent scholarship from pepperDine law professors.

FALL 2011

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

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

| Translating Theory into Practice Since 1986 |

for Dispute Resolution

special Faculty edition

4 When erie Goes international

donald earl childress iii

6 ncaa sanctions: assigning Blame Where it Belongs

Maureen arellano Weston

12 liMitinG article iii standinG to “accidental” plaintiFFs:

lessons from environmental and animal law cases

robert J. pushaw

14 the eMerGinG oversiMpliFications oF the GovernMent speech doctrine:

From substantive content to a “Jurisprudence of labels”

Barry p. Mcdonald

20 Fcc reGulation versus antitrust:

how net neutrality is defining the Boundaries

Babette Boliek

22 reliGious arBitration and the neW MulticulturalisM:

negotiating conflicting legal orders

Michael a. helfand

24 the third arBitration triloGy: Stolt-Nielsen, Rent-a-Center,

Concepcion, and the Future of american arbitration

thomas J. stipanowich

Faculty puBlications and speakinG enGaGeMentsthe latest in books, articles, presentations, and more from full-time faculty of pepperdine law.

printed alphabetically throughout this publication

also in this issue: 2 Message from the dean

3 news

16 legal research and Writing program

17 clinical education program

30 distinguished visiting professors

32 recent and upcoming events

vol. 30, no. 2 Fall 2011

Pepperdine Law, the magazine of pepperdine university

school of law, is published by pepperdine university.

School of law adminiStration

deanell reece tacha – Duane and Kelly Roberts Dean

l. timothy perrin – Vice Dean

carol a. chase – Associate Dean, Academics

herbert e. cihak – Associate Dean, Library and information Services

James a. Gash (Jd ’93) – Associate Dean, Student Life

Maureen arellano Weston – Associate Dean, Research

aymara Zielina – Assistant Dean, Career Development

PePPerdine law Staff

Megan huard – editor

keith lungwitz – Art Director

vincent Way – Copy editor

ron hall (’79) – Photographer

Jill McWilliams – Production manager

Jenny rough (Jd ’99), Gareen darakjian, sarah Fisher – Contributors

kimberly robison (’10) – Web developer

the office of Public affairS

rick Gibson (MBa ’09, pke 121) – Vice President for Public Affairs and Church Relations

Matt Midura (’97, Ma ’05) – Assistant Vice President for integrated marketing Communications

Megan huard – Director of Content Development/ managing editor

Brett sizemore – Director of Creative Services

ed Wheeler (’97, Ma ’99) – Director of Web and multimedia

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

p: 310.506.4611 f: 310.506.4266

e-mail: [email protected]

School of law officeS

admissions 310.506.4631

advancement and alumni relations 310.506.4492

career development 310.506.4634

Global Justice program 310.506.4734

international programs 310.506.7597

straus institute for dispute resolution 310.506.4655

Geoffrey h. palmer center for entrepreneurship and the law 310.506.4681

herbert and elinor nootbaar institute on law, religion, and ethics 310.506.7635

clinical programs 310.506.7449

ls1108020 Read the magazine online at lawmagazine.peppeRdine.edu.

teaching becomes a stagnant and even outdated endeavor if not

constantly revitalized by the thoughtful consideration of new frontiers of

knowledge, analysis, and inquiry that is the work of a great scholar. in the

law school setting, scholarship takes many forms because, in part, the goal

of scholarly work is to assist legal professionals. it is also to move the body

of legal literature forward by informing cases under consideration by judges

and issues being analyzed by lawyers, as well as expanding the horizons of

public policy and academic inquiry.

as a former federal judge, immersed in cases and opinions for 25 years,

i can personally attest to the intellectual exhilaration of finding a law

review or journal article that directly assists in the analysis of a case under

advisement. although a scholarly article rarely provides the on-point

answer in a particular case or controversy, the precision with which legal

scholars can predict and analyze the most current issues before the courts,

and challenge lawyers and public policy makers, is one of the major

contributions to the body of legal knowledge. Further, legal scholarship

may reach beyond the current issues and begin to push the frontiers of

the law to new and stimulating possibilities for the future. other types

of scholarship examine the history of the law to try to inform its future

directions. Finally, other forms of legal scholarship are very pragmatic in

their purposes: assisting lawyers, judges, mediators, and even litigants in

the everyday understanding of the law at work in practice, in courtrooms,

and in the public square. all these forms of legal scholarship are valuable

tools for the profession, and i am proud and gratified to present this brief

compendium of the great, recent work of the pepperdine university school

of law scholars.

Members of the faculty are fully engaged in all of the valuable forms of

legal scholarship. they are thereby enriching their call to teaching and the

classroom experiences of our students. in addition, because of pepperdine’s

commitment to be a law school dedicated to christian values, many of our

faculty are exploring in thoughtful ways the most difficult questions of our

time at the intersection of religion, values, service to humanity, and the law

as it affects these important human impulses. i hope that all who read this

list of achievements will be energized and inspired, as i continually am, by

the work of these remarkable scholars. i am honored to work among them.

deanell tachaDuane and Kelly Roberts Dean

and Professor of Law

the mark of a great law school

is that the teaching commitment of its faculty is informed by

robust and creative scholarly research and writings.

2PEPPERD INE LAW: sPEc IAL fAcuLty ED It IoN

MessaGe FroM the dean

pepperdine school oF laW estaBlishes neW endoWed chair

school of law alumnus

Laure Sudreau-Rippe (’97)

provided pepperdine with a

generous gift to establish the

laure sudreau-rippe endowed chair

at the school of law, the first chair to

be endowed by a female alumnus.

“this chair will make possible very

important enhancements to the work being done by the

palmer center for entrepreneurship and the law,” notes

school of law dean deanell reece tacha. “it will enable

students to be involved in the essential links that must

be forged in training lawyers and businesspeople to work

together in their mutual efforts to strengthen the economic

fiber of the nation and the world.”

professor Janet kerr, the first occupant of the endowed chair,

was selected by sudreau-rippe for her dedication to women’s

microfinance opportunities, and because throughout her

career she has championed the cause of women in law.

kerr, who began her distinguished career on the school of

law faculty in 1983, serves as the executive director of the

Geoffrey h. palmer center for entrepreneurship and the

law. during her tenure at the law school, she has twice been

recognized as a luckman distinguished teaching Fellow,

has served as associate dean for academics, and has written

widely on securities regulation. she is an expert on corporate

governance issues and sits on the boards of several publicly-

held corporations.

school oF laW WelcoMes three neW Faculty MeMBersthis year the school of law added three new faculty members—khrista Mccarden, derek Muller, and amy levin—to its dynamic roster of professors.

Mccarden, associate professor of law, arrived

at pepperdine this spring after practicing

international tax law at Morgan lewis in

london. Following her graduation from harvard

law school, magna cum laude, she clerked for

Judge Barrington d. parker of the united states

court of appeals for the second circuit. she has published

articles in both the united states and in the united kingdom

and lectured on u.s./u.k. dual-qualified charitable structures

(learn more on page 19). she will teach Federal income

taxation, Federal income taxation of Business entities, and

international tax.

Muller graduated from the university of notre

dame school of law, summa cum laude, and

then clerked for Judge raymond W. Gruender

on the united states court of appeals for the

eighth circuit. as an associate at kirkland & ellis

in chicago, Muller practiced litigation, including

white-collar criminal defense and commercial and corporate

disputes. his teaching background includes serving as a visiting

assistant professor and shughart Fellow at pennsylvania state

university’s dickinson school of law (learn more on page 26).

he will teach civil procedure and complex litigation.

levin,visiting assistant professor of law, is a

graduate of the ucla school of law. Before

joining the pepperdine faculty this fall, levin

was an associate at arnold & porter llp,

specializing in commercial and trademark

litigation. levin clerked for Judge richard a.

paez of the united states court of appeals for the ninth circuit

following her graduation from law school. she will teach legal

research and Writing.

3 LAWmAgAz ine .PePPeRD ine . eDU

neWs

certain cases live long in the legal imagination, even

though some lawyers and law students would just as

well forget about them. one prime example of this is the

supreme court’s decision in erie Railroad Company v. Tompkins,

which has been described as “one of the modern cornerstones

of our federalism, expressing policies that profoundly touch

the allocation of judicial power between the state and federal

system” and as “a star of the first magnitude in the legal

universe.” as almost every first-year law student comes to know,

the so-called “erie doctrine” generally requires federal courts to

apply the law of the forum state in which the court sits, unless

the matter before the court is governed by the constitution, a

federal statute, a Federal rule of civil procedure, or some other

federal rule. since the erie decision, the supreme court has

sought to settle the doctrine’s puzzles in a series of cases

. . . involving the interplay between federal and state laws and

procedural rules.

one such erie puzzle involves the choice of applicable

substantive law in federal courts when a legal dispute crosses

state borders. What state’s law should apply when the laws of

more than one state are potentially applicable to a case? the

supreme court provided an answer to that question in Klaxon

Company v. Stentor electric manufacturing Company, when it

held that a federal court must apply not only state substantive


When erie Goes international

By donald earl childress iii105 northweStern univerSity law review (forthcoming 2011)

under the conventional understanding, the

Erie doctrine not only requires federal

courts to apply the law of the state in which

the court sits, but also to apply that state’s conflict-

of-laws rules, even when those rules direct the

court to apply the law of a foreign country. In this

article, Childress argues that courts should question

this mechanistic application of the Erie doctrine

to transnational cases. This topic is of increasing

importance today because as more transnational

cases are filed in U.S. courts, judges must revisit and

update domestic doctrines to meet the challenges

presented when they hear such cases.

law but it also must apply state conflict-of-laws rules. . . . in

the supreme court’s view, to do otherwise “would constantly

disturb equal administration of justice in coordinate state and

federal courts sitting side by side” and “would do violence to

the principles of uniformity within a state, upon which the erie

decision is based.” this holding, while well settled, is not without

vigorous criticism.

nearly all of the cases developing the erie doctrine have

arisen in the federal/state (whether federal or state laws or

procedural rules control) or state/state (whether the laws of

state a or B control) context. While the erie doctrine may make

sense in the intra-state context given that as a constitutional

matter states and their citizens must be treated equally, another

erie question arises in the international context—namely, must

a federal court apply the law of a foreign country when directed

by state conflict-of-laws rules? What happens when the erie

doctrine goes international?

the supreme court resolved this “subpuzzle” within the larger

erie/Klaxon puzzle in a short per curiam opinion in the case of

Day & Zimmermann, incorporated v. Challoner, which held that

federal courts must apply state conflict-of-laws rules, even when

those rules direct the court to apply the substantive law of a

foreign country.

the purpose of this article is to unsettle the quiescent waters

of this erie/Klaxon subpuzzle in private transnational cases. it

should be asked up front: if the law is so settled, why unsettle

it and perhaps further befuddle generations of lawyers and

law students whose only hope has been to find any semblance

of consistency in the dictates of the erie doctrine? three

preliminary answers can be given.

First, it is a mistake to treat international and domestic

conflict-of-laws cases in the same way because “international

choice of law requires more flexibility than domestic choice

of law.” [W]hile the constitution, the rules of decision act,

the rules enabling act, and various policy considerations may

require the application of the laws of the several states, these

same sources should not be read as similarly and automatically

requiring the application of the law of foreign states because

the application of foreign law, unlike sister state law, is entirely

voluntary. . . .

second, to the extent there is increased private transnational

litigation in united states courts, these erie questions will arise

with more frequency. to the extent they arise, courts should

question the mechanistic application of a doctrine announced

in the 1930s (and updated to conflict of laws in the 1940s and

1970s) to the realities of today, especially in light of more recent

supreme court cases concerning constitutional constraints on

choice of law.

third . . . the animating ethos of the erie doctrine is perhaps

thwarted by its application in private international cases.

if it is correct that the erie doctrine is about separation of

powers and federalism, it does little to effectuate these goals

by requiring federal courts to apply uncritically foreign law.

Furthermore, recognizing that in unclear areas the erie choice

requires consideration of the “twin aims” of “discouragement

of forum shopping and avoidance of inequitable administration

of the laws,” these aims must be balanced against the strength

of having a consistent federal policy. [t]his article shows

through empirical analysis that forum shopping might be

encouraged by the erie doctrine’s application to cases involving

foreign law. the discussion of forum shopping uncovers a

previously unrecognized connection in the scholarly literature:

internationalizing the erie doctrine may in part explain the

increased use of the forum non conveniens doctrine by federal

district courts.

Donald Earl Childress III (“Trey”), associate professor of law, teaches and works extensively on the topic of

international civil litigation, comparative law, and conflicts of law. Among other activities, he is the American

coeditor of the blog Conflictoflaws.net, the leading private international law portal on the Internet. His

scholarship has appeared in the Duke Law Journal, UC Davis Law Review, and Georgetown Law Review, in addition to

this article which will appear in the Northwestern University Law Review.

reprinted with permission of the Northwestern University Law Review

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


everyone loves a winning team. success in a major

athletic program, particularly an ncaa division i national

championship, translates into millions of dollars and

immense pride for the players, coaches, alumni, students,

and the university. a major intercollegiate athletics program

can also have a positive impact on the academic mission of a

university. revenues from broadcast rights and merchandise

sales, admissions applications, and fundraising for the entire

university are enhanced. a winning program can also catapult

the recruiting process and be a determinative factor in a sought-

after high school student-athlete’s choice of university.

along with the tangible benefits and lure of winning is the

intense pressure to win. . . . the love of the sport, as well as the

prospects for a collegiate scholarship and a potentially lucrative

professional sports career, motivate young athletes to devote

years to intense training and competition. Many families spend

thousands of dollars to provide instruction and competitive

development opportunities to their children. coaches are

certainly invested as well, with their job security, status, and

compensation packages largely dependent upon producing

winning programs. For better or worse, scouts and agents are on

watch to identify and attract star athletes as future professional

sport clients. likewise, the professional sport leagues are eager

to sign young talent to their rosters. . . .

the relatively few student-athletes talented, able, and

fortunate enough to compete in major intercollegiate sports

are highly recruited. the courtship includes promises of

scholarships, extensive playing opportunities, and prospects for

a professional athletic career. . . .

the ncaa . . . formed for the purpose of administering

intercollegiate athletics . . . [is to] ensure that the competitive

athletics programs of member institutions are a vital part of the

education process, that student-athletes are an “integral part of

the student body,” and that college sports retain their hallmark—

amateurism. the ncaa has promulgated and enforced rules that

govern nearly every aspect of competition, and the student-

athlete’s experience, with an aim to ensuring competitive

fairness and protecting the interests of student-athletes. in

the practical reality of the “arms race” in major collegiate

sports, however, these principles are often violated. some rule

violations are minor . . . other violations are egregious, such as

payments or a range of impermissible extra benefits provided to

By Maureen arellano Weston52 boSton college law review 551 (2011)

in this article, Weston asserts that NCAA

sanction powers can be too narrow in that

they extend only to member institutions,

not to individual coaches, players, agents,

boosters, or other involved individuals, but

also can be too broad in that they negatively

impact current student-athletes, who are

restricted in their ability to transfer without

penalty.

Weston proposes new rules for holding coaches and

institutions financially accountable for infractions, while

protecting uninvolved student-athletes. this topic is of

continuing relevance as the scandals involving alleged

improper benefits to student-athletes intensify. her article

discusses the intended and unintended impacts resulting

from the sanction power of the national collegiate athletic

association (ncaa).

ncaa sanctions: assiGninG BlaMe Where it BelonGs


MAUREEN A. WESToN, associate dean for research

and professor of law, is the coauthor of casebooks

on arbitration and on sports law and has written

numerous articles and spoken at academic

conferences in the fields of mediation, arbitration,

and sports law. She has written articles published

by law reviews at Minnesota, William and Mary,

Indiana, Tennessee, and the Harvard Negotiation

Law Journal, among many others.

reprinted with permission of Boston College Law Review.

Footnotes have been omitted. the full excerpt is available at

lawmagazine.pepperdine.edu.

players or their families, academic fraud, and recruiting abuses

by coaches or agents. . . .

in this competitive environment, some coaches, players,

agents, boosters, institutional members, and even parents

succumb to the temptation to cheat. a recent case . . . [involved]

. . . allegations of cheating in football and men’s basketball by

two of the most high-profile student-athletes ever to attend

[the university implicated]. [one athlete] was found to have

accepted thousands of dollars in cash payments, airline tickets

for his parents to attend away football games, a free limousine

service, expensive clothing, a vehicle, free lodging in las vegas,

and a rent-free home and cash for his parents. tragically,

[the student’s] mother and stepfather were at the center of

the cheating scandal [in accepting payments in exchange for

promises to deliver their son to agents]. . . .

[the university’s] basketball program [involved] infractions [of

recruiting and benefits] . . . .

Finding [the university] a “repeat violator,” the ncaa imposed

stringent sanctions, including a two-year ban on postseason

competition for seasons 2010 and 2011, vacatur of all wins in

which these students had competed (since december 2004),

and a reduction in the number of football scholarships for

2011–2014. . . .

ncaa rule violations require accountability and consequences.

But who really pays for the sins of a few former student-athletes,

sleazy agents, or other unscrupulous individuals who associate

themselves with an athletic program? innocent teammates

. . . now have their title vacated. current student-athletes

and incoming recruits . . . found themselves on a team much

different from what they envisioned, and are not allowed to

experience postseason bowl play. . . .

life is not always fair, but cheating never is. consequences

are necessary . . . but do ncaa sanctions adequately punish the

actual wrongdoers, or do they disproportionately impact current

student-athletes? . . . arguably, an entire program is complicit

by virtue of association with rule-breakers where there is

knowing disregard by institutional officials. But ncaa sanctions

impact entire programs, innocent teammates, new recruits, even

conference members, and yet fail to penalize many of the actual

wrongdoers.


roGer p. alFordProfessor of Law and Director, Glazer

institute for Jewish Studies

llM edinburgh university, 1992, magna cum laude

Jd new york university, 1991, with honorsMdiv southern seminary, 1988Ba Baylor university, 1985, with honors

Book

the future of inveStment arbitration (with catherine rogers) (oxford univ. press 2009).

Book Chapter

moral Reasoning in international Law, in the role of ethicS in international law (with James Fallows tierney) (forthcoming).

Articles

Apportioning Responsibility Among Joint Tortfeasors for international Law Violations, 38 PePP. l. rev. 233 (2011).

The Nobel effect, 103 am. Soc’y int’l l. Proc. 467 (2009).

roBert anderson ivAssociate Professor of Law

phd stanford university, 2008Jd new york university, 2000Ba claremont-Mckenna college, 1997

Articles

Law, Fact, and Discretion in the Federal Courts: An empirical Study, 2012 utah l. rev. (forthcoming).

Distinguishing Judges: An empirical Ranking of Judicial Quality in the United States Court of Appeals, 76 mo. l. rev. 315 (2010).

institutions and equilibrium in the United States Supreme Court (with alexander M. tahk), 104 am. Pol. Sci. rev. 811 (2007).

BaBette e. BoliekAssociate Professor of Law and Acting

Director, Palmer Center for entrepreneurship

and the Law

phd university of california, davis, 2007Jd columbia university, 1998Ba california state university, chico, 1987

Articles

FCC Regulation Versus Antitrust: How Net Neutrality is Defining the Boundaries, b.c. l. rev. (forthcoming).

Wireless Net Neutrality Regulation and the Problem with Pricing: An empirical, Cautionary Tale, 16 mich. telecomm. tech. l. rev. 1 (2009).

Presentations

“the law of disaster,” southeastern association of law schools conference (July 2011).

“net neutrality and international law,” albany law school (apr. 2011).

thoMas G. BostProfessor of Law

Jd vanderbilt university school of law, 1967, Founder’s Medalist

Bs abilene christian university, 1964, summa cum laude

News

served with distinction as interim dean of the school of law during the 2010-11 academic year.

Book Chapter

Reason, Freedom and Apocalyptic Vision: Churches of Christ and the Practice and Teaching of Law, in faith and law: how religiouS traditionS from calviniSm to iSlam view american law (robert F. cochran, Jr., ed., nyu press 2008).

Article

Corporate Lawyers After the Big Quake: The Conceptual Fault Line in the Professional Duty of Confidentiality, 19 geo. J. legal ethicS 1089 (2006).

8PEPPERD INE LAW: sPEc IAL fAcuLty ED It IoN 8

Faculty Publications and sPeaking engagements

h. Mitchell caldWellProfessor of Law

Jd pepperdine university, 1976Ba california state university long Beach,

1972, cum laude

Books

criminal mock trialS (vandeplas forthcoming 2012) (with terry adamson).

criminal Pretrial advocacy (vandeplas forthcoming 2012) (with terry adamson).

the art and Science of trial advocacy (with l. timothy perrin & carol a. chase) (lexis 2d ed. 2011).

caSe fileS for baSic trial advocacy (lexis 2009) (with carol a. chase, naomi harlan Goodno, and l. timothy perrin).

Articles

Lessons from the masters, the Seven Pillars of Trial Advocacy, am. J. trial adv. (forthcoming).

Kafka in the Docket: Coercive Plea Bargaining, The Unrecognized Scourge of the Justice System, 61 cath. u. l. rev. 24 (2011).

carol a. chaseAssociate Dean, Academics,

and Professor of Law

Jd university of california, los angeles, 1978

Ba university of california, los angeles, 1975, summa cum laude

Books

the art and Science of trial advocacy (lexis 2d ed. 2011) (with l. timothy perrin and h. Mitchell caldwell).

caSe fileS for baSic trial advocacy (lexis 2009) (with h. Mitchell caldwell, naomi harlan Goodno, and l. timothy perrin).

Article

Unpredictable Doom and Lethal injustice: An Argument for Greater Transparency in Death Penalty Decisions (with h. Mitchell caldwell & christine chambers Goodman), 82 temPle l. rev. 997 (2009).

donald earl childress iiiAssociate Professor of Law

llM duke university, 2004, magna cum laudeJd duke university, 2004, magna cum laudeMa oxford Brookes university, 1999, with

distinctionBa university of virginia, 1997

Book

the role of ethicS in international law (donald earl childress iii, ed. cambridge univ. press, forthcoming).

Articles

The Alien Tort Statute, Federalism, and the Next Wave of international Law Litigation, 100 geo. l.J. (forthcoming).

When erie Goes international, 105 northweStern u. l. rev. (forthcoming).

Comity as Conflict: Resituating international Comity as Conflict of Laws, 44 u.c. daviS l. rev. 11 (2010).

Presentations

“private international law in the context of Globalization,” the chinese society of private international law, china university of political science and law, Beijing, china (oct. 2011).

“personal Jurisdiction as choice of law,” southeastern association of law schools annual Meeting, hilton head, south carolina (July 2011).

“transnational remedies in private international law cases,” seventh remedies discussion Forum, university of aix-Marseille iii, aix-en-provence, France (June 2011).

herBert e. cihakAssociate Dean, Library and information

Services and Professor of Law

Mls Brigham young university, 1984Jd university of nebraska, 1983Ma Brigham young university, 1975Ba Brigham young university, 1972

Book Chapters

Son of Sam; Son of Sam Laws, in the encycloPedia of american law and criminal JuStice (with Jessica drewitz) (forthcoming).

Direct Democracy, in Political encycloPedia of u.S. StateS and regionS (donald p. haider-Markel & Michael a. card eds., cQ press 2009).

Presentation

“library leadership,” chinese and american Forum on legal information and law libraries, philadelphia, pennsylvania (July 2011).

9 LAWmAgAz ine .PePPeRD ine . eDU9

roBert F. cochran, Jr.Director, Herbert and elinor Nootbaar

institute on Law, Religion, and ethics, and

Louis D. Brandeis Professor of Law

Jd university of virginia, 1976Ba carson-newman college, 1973,

magna cum laude

Books

louiS d. brandeiS’ mit lectureS on law (carolina academic press, forthcoming 2011).

lawyerS, clientS, and moral reSPonSibility (with thomas l. shaffer) (West 2d ed. 2009).

Articles

Collaborative Practice’s Radical Possibilities for the Legal Profession: “[Two Lawyers and Two Clients] for the Situation,” 11 PePP. diSP. reSol. l.J. 229 (2011).

introduction: Blessed are the Compromisers?, 38 PePP. l. rev. 813 (2011).

Legal ethics and Collaborative Practice ethics, 38 hofStra l. rev. 537 (2010).

Presentation

“the christian responsibility for social Justice: theory and practice,” the Fifth international conference on christian higher education and scholarship, Baekseok university, korea (June 25, 2011).

Jack J. coe, Jr.Professor of Law

phd london school of economics and political science, 1999

llM university exeter, exeter, england, 1982Jd loyola Marymount school of law, 1979Ba university of california, los angeles,

1975, with distinction

News

professor coe serves as an associate reporter for the american law institute’s reStatement of the law (third), international commercial arbitration.

Book Chapters

Chapter 4, in reStatement of the law (third) international commercial arbitration (american law institute, forthcoming).

Concurrent med-Arb—Some Further Reflections on a Work in Progress, in inveStor-State diSPuteS: Prevention and alternativeS to arbitration ii 43 (s. Franck & a. Joubin–Bret, eds., 2011).

Article

Client expectations in investor-State Cases, tranSnat’l diSP. mgmt. (forthcoming).

Presentation

“convention on the international sale of Goods,” southwestern institute on international and comparative law, annual symposium on Global Markets (June 14-15, 2011).

richard l. cupp, Jr.John W. Wade Professor of Law

Jd university of california, davis, 1987Ba pepperdine university, 1983,

magna cum laude

Book Chapter

Tort Reform or Tort Restriction: Rhetoric as Scorekeeper, in materialS on tort reform (andrew popper ed., thomson/West 2010).

Articles

in Praise of moral Judgment: The Restatement (Third) of Torts and Flagrant “Bad Guy” Trespassers, 1 wake foreSt l. rev. online 37 (2011).

international Tobacco Litigation’s evolution as a United States Torts Law export: To Canada and Beyond?, 38 PePP. l. rev. 283 (2011).

Presentation

Member of planning committee and participant, institute of Medicine’s Forum on neuroscience and the national academy of sciences committee on science, technology and law, Meeting re the future of animal research regulation in the united states and europe, london (July 2011).

JaMes allan GashAssociate Dean of Student Life and Associate

Professor of Law

Jd pepperdine university, 1993, summa cum laude

Ba abilene christian university, 1989, summa cum laude

Book Chapter

Understanding and Solving the multiple Punishments Problem, in Punitive damageS: iS euroPe miSSing out? (intersentia forthcoming 2011)

Article

The end of an era: The Supreme Court (Finally) Butts Out of Punitive Damages for Good, 63 fla. l. rev. 525 (2011).



christine chaMBers GoodManProfessor of Law

Jd stanford law school, 1991Ba harvard college, 1987, cum laude

Book

examPleS & exPlanationS: california evidence (Wolters kluwer 2010).

Articles

A modest Proposal in Deference to Diversity, 23 nat’l black l.J. 1 (2010).

The Gate(Way)s of Hell and Pathways to Purgatory: eradicating Common Law Protections in the Newly Sculpted Character evidence Rules of the United Kingdom’s 2003 Criminal Justice Act, 66 u. miami l. rev. (forthcoming 2011).

Presentations

“increasing law Firm diversity,” o’Melveny & Myers, los angeles, california (oct. 19, 2011).

“a teacher Who looks like Me,” national conference on race and ethnicity, san Francisco, california (June 4, 2011).

naoMi harlin GoodnoAssociate Professor of Law

Jd Boalt law school, university of california, 1999

aB princeton university, 1995

Book

caSe fileS for baSic trial advocacy (lexis 2009) (with h. Mitchell caldwell, carol a. chase, and l. timothy perrin).

Book Chapter

California “Three Strikes” Law Alleviates Crime, in mandatory minimum Sentencing (2010).

Articles

How Public Schools Can Constitutionally Halt Cyberbullying: A model Cyberbullying Policy that Survives First Amendment, Fourth Amendment, and Due Process Challenges, wake foreSt l. rev. (forthcoming).

Protecting “Any” Child: The Confidential marital Communications Privilege in Child molestation Cases, 59 u. kan. l. rev. 1 (2010).

Presentation

“Global criminal prosecutions of u.s. citizens,” socal Junior Faculty Workshop (May 2011).

colleen p. GraFFyDirector, Global Programs, Academic Director,

London Program, and Associate Professor of

Law

llM king’s college, 1996, with meritdiploma in law—city university and inns of court school of law, 1991Ma Boston university, 1982Ba pepperdine university, 1979

Articles

iraq Was a Good War—it Sparked the Arab Spring, london Sunday timeS (september 11, 2011).

An American Perspective, eu and uS relationS in the 21St century (institute of contemporary european studies) occasional paper 06, 2011.

Presentations

“in conversation with Former secretary of state condoleezza rice,” pepperdine university school of law (Feb. 9, 2011).

“What is america doing to improve its image abroad?” Westlake village republican Women, Federated (Jan. 27, 2011).

Michael a. helFandAssociate Professor of Law and Associate

Director, Diane and Guilford Glazer institute

for Jewish Studies

phd yale university, 2009Jd yale university, 2007Ba yeshiva university, 2002

Articles

Fighting for the Debtor’s Soul: Regulating Religious Commercial Conduct, 19 geo. maSon l. rev. (forthcoming).

Religious Arbitration and the New multiculturalism: Negotiating Conflicting Legal Orders, 86 n.y.u. l. rev. (forthcoming).

Presentations

“a liberalism of sincerity: religion’s role in the public square,” conference on religious law and state’s affairs, Bar ilan university (May 29-30, 2011).

“religious arbitration and the new Multiculturalism,” Faculty colloquium, university of st. thomas school of law (apr. 6, 2011).


standing doctrine determines who can sue to enforce

federal law. the court has held that article iii, by

extending “judicial power” to “cases” and “controversies,”

restricts standing to plaintiffs who can demonstrate (1) a

particularized “injury in fact” (2) caused by defendant (3) that is

likely to be redressed judicially. . . .

the court developed its basic standing requirements from

1939 to 1974 and has continually refined them. unfortunately,

they remain malleable and have often been applied subjectively

to reach preferred results. . . . these problems are especially

apparent with “injury in fact.” this requirement is easily met

when a plaintiff has suffered physical harm or monetary loss.

the harder cases involve new rights congress has created that

have no common law analogue. the court has responded by

recognizing equally novel “injuries,” such as reduced aesthetic

enjoyment of the environment. . . .

the “individualized injury” determination often depends on

using certain magic words. such arbitrariness also characterizes

the other two article iii standards. First, “causation” is a

discretionary policy judgment about how far back in a chain

of events a court is willing to go. second, ascertaining whether

an injury is “likely” to be redressed involves guesswork about

probabilities. . . .

Because the court only issues standing opinions

every few years, the doctrine has far greater practical impact

in the lower federal courts. they have broad discretion in

implementing flexible standing standards, especially in legal

areas where the court has not yet spoken.

By robert J. pushaw45 georgia law review 1 (2010)

this article examines standing to sue

in federal court. The Supreme Court’s

limitations on standing often thwart the

vindication of federal law, especially in crucial

areas like environmental regulation. Pushaw argues

that the court should revise its standing doctrine to

better reflect the original meaning of Article III and

to promote greater clarity.

liMitinG article iii standinG to “accidental” plaintiFFs: lessons FroM environMental and aniMal laW cases


a timely example concerns the animal Welfare act (aWa),

which prohibits inhumane treatment of animals. Federal courts

at first denied standing under the aWa because it does not

create causes of action for private parties, but rather leaves

enforcement to the department of agriculture. . . . in several

recent cases, however, the d.c. circuit has granted such

standing. . . .

this liberalization ignores two constitutional concerns.

First, lenient standing threatens separation of powers, as

policy decisions are transferred from congress and executive

agencies to unelected federal judges. second, whereas each

agency implements its governing statute according to a set

of enforcement priorities, private parties can sue defendants

arbitrarily and thus threaten their liberty . . .

the vagueness of standing doctrine reflects its lack of a firm

foundation in article iii’s text, structure, and history . . . [i]

propose certain revisions that . . . more accurately reflect the

original meaning of article iii and enhance clarity.

the definition of “judicial power” has remained stable since

1787: rendering a final judgment after interpreting the law and

applying it to the facts. “Judicial power” necessarily must be

exercised deliberatively, which means a court’s docket cannot

grow so large that careful decision making becomes impossible.

that imperative places an outer limit on congress’s broad article

iii authority to control federal courts’ jurisdiction: congress

cannot expand their caseloads to intolerable levels, which might

occur if it granted standing to millions of people. . . .

Moreover, article iii “judicial power” can be exercised only

to decide “cases” and “controversies.” the court has long

asserted that standing is based on the historical understanding

of these two words. remarkably, however, no Justice has ever

investigated their 18th-century usage. even more curiously, the

court has never noticed that all of its standing decisions involve

one category of article iii jurisdiction—“cases” arising under

the constitution and federal statutes—whereas none concerns

“controversies.”

recognizing this point would properly redirect the court’s

attention to the original meaning of the word “case”: a chance

occurrence that invades someone’s legal rights and thereby gives

rise to a cause of action, in which a court’s chief function is to

expound the law. thus, standing should focus on the appropriate

plaintiff who can bring an article iii “case”—namely, one whose

legal rights have been violated fortuitously (involuntarily as

a result of an event beyond plaintiff’s control) and who can

therefore legitimately trigger the court’s expository function.

applying this test, a court would find an “injury in fact” only

when it befalls a plaintiff by chance. this sort of injury always

exists when violation of a federal law results in tort, contract,

or property damages. that explains why in most regulatory

areas, the court has held that congress can entrust statutory

enforcement to an agency and that no one else has standing

except for those whose common law or constitutional rights

have been directly abrogated. For example, aWa claims should

ideally be litigated only by the usda and plaintiffs who have

experienced common law harms. realistically, however, the

court will not overrule its precedent recognizing environmental

and aesthetic injuries. nonetheless, it should limit such cases by

adopting a presumption that plaintiffs who suffer physical harm

or financial loss meet the test of fortuity, whereas all others do

not and are pursuing a deliberate litigation strategy.

those latter plaintiffs should be able to rebut that

presumption only by demonstrating that they suffered

distinctive injuries that occurred fortuitously while they were

engaging in lawful recreational activity for its own sake. . . . By

contrast, standing should be denied to those who go somewhere

specifically to look for legal violations to use as a basis to file

a complaint. such self-inflicted injuries should be treated as a

species of feigned claims, which have long been barred. . . .

When someone’s claims arise fortuitously, it is usually easy

to identify who caused the injury and whether the relief sought

will redress it. on the other hand, a plaintiff using the courts to

advance a policy agenda typically has to contrive not only an

injury, but also causation and redressability. . . .

in short, article iii “cases” arise by accident rather than

design. incorporating this insight would greatly improve

standing doctrine.

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

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


[t]he “government speech” doctrine . . . hold[s] that whenever

it can be said that the government is engaging in speech,

then it is not subject to First amendment limitations with

respect to the impact its actions or message may have on private

speakers associated with that speech. under . . . this doctrine,

the [u.s. supreme] court has sanctioned the imposition of

normally prohibited viewpoint restrictions on private speakers

who accept government funds or on government employees

speaking on matters of public concern; the compulsion of

private-party funding for speech with which it disagrees; and

the selective exclusion of speakers from traditional public fora

based on the content of the speakers’ message. in other words,

the government speech doctrine has become a First amendment

“escape hatch” for placing substantial restrictions or burdens

on private speakers that would otherwise be subject to serious

judicial scrutiny and constitutional doubt if traditional free

speech principles were applied. . . .

By Barry p. Mcdonald2010 Byu law review 2071

in his article, McDonald discusses the

development of the government speech

doctrine. He addresses how the current

Court has transformed the doctrine from a tool

of substantive analysis into “a jurisprudence

of labels” and contends that this modern

development is misguided. McDonald urges a

return to a formulation and application of the

government speech doctrine as it was originally

conceived. The topic is of significance because that

doctrine is currently being employed by the Court

to allow the government suppression of viewpoints

that would normally not be allowed under the First

Amendment.

The Emerging oversimplifications of the Government Speech Doctrine: FRoM SUBSTANTIvE CoNTENT To A “JURISPRUDENCE oF LABELS”


in this article, i . . . trace the development of the government

speech doctrine and demonstrate that it has become unhinged

from its original purpose of assisting in the ordering of

governmental and private speech interests in cases where they

intersect and conflict. [W]henever the court can label a message

involving the interaction of both government and private

speakers as primarily that of the government, it washes its hands

of assessing the constitutionality of the burdens placed on the

interests of the private speakers. . . .

a year after Keller v. State Bar of California [asserting that

regular taxpayers do not have a First amendment right to

prevent ordinary government agencies from using their taxes

to promote disagreeable views], the court decided Rust v.

Sullivan [and took] the position that the government could

constitutionally ban the operators of family planning clinics

from providing abortion counseling as a condition of receiving

federal funding, rejecting the contention that such a ban

amounted to viewpoint discrimination prohibited by the First

amendment. . . . the court made no reference to Keller or the

government speech doctrine. . . .

Four years later, Justice kennedy . . . built on this theme

from Rust in dictum in a case where a religious student

publication contended that the denial of printing subsidies by

a public university amounted to unconstitutional viewpoint

discrimination because secular student publications were eligible

to receive them. the court agreed with the plaintiff on the

grounds that the university had created a virtual public forum

to encourage student speech with the funds, and any viewpoint

discrimination in administering them was unconstitutional.

kennedy rejected the university’s reliance on Rust and related

cases. . . . instead, he characterized Rust as standing for the

principle that when the government itself speaks or grants

funds to private speakers to convey the government’s own

message, it is then entitled to control that message. . . . But in

the case under review, kennedy reasoned, the government was

facilitating the expression of a diversity of private views through

the creation of a limited public forum. once again, the court

made no mention of Keller or the government speech doctrine.

. . . kennedy later extended this reconceptualization of Rust

in Board of Regents v. Southworth. . . . in dictum in that case, he

set forth the central premise of the government speech doctrine

articulated in Keller . . . but oddly cited to Rust, rather than

Keller, in support of it. one year later, kennedy again continued

his morphing of Rust in a government speech subsidy decision .

. . to support the proposition that the government can promote

its own views through its speech or funding decisions. . . . and

somewhat ironically, two years later . . . the court seemed to

return to the original meaning of Rust . . . and explicitly rejected

the characterization of Rust as being dependent upon the

government speaking a message.

thus we can see that Justice kennedy contributed substantially

to the decoupling of the government speech doctrine from

Keller. . . . [o]ne suspects [the reason behind] it had something

to do with the specific results of Keller and Rust. Keller was the

decision in which the court validated the principle that as a

general matter the government can take positions contrary to

that of dissenting citizens, but the court found it inapplicable

to the agency speaking in that case (the state Bar) and decided

against the government’s position. By contrast, in Rust the

court sided on behalf of the government interests over those

of the dissenting private speakers (the objecting staff of the

family planning clinics). thus, when kennedy was seeking

support in Rosenberger v. Univ. of Virginia for the notion that

the government can choose to fund its own messages through

restrictions on private speakers in order to further its policies,

he naturally turned to Rust rather than Keller. . . . the irony

is that in Rosenberger, Southworth, and Legal Services Corp. v.

Velazquez, where kennedy uncritically lifted the government

speech doctrine out of its Keller context, his discussions were all

dicta since the government was not a speaker in them. . . .

[did] this uncritical translation of the Keller government

speech doctrine to the restricted funding decisions matter[?]

i would argue that it did since what got lost in the translation

was the principle that just as the government should not have

carte blanche power to compel funding of disagreeable messages

in every case where it speaks, so it should not have similar

powers to impose speech restrictions on private speakers simply

because they receive government money as part of a program

that reflects a particular policy position.

Barry P. McDonald, professor of law, is a recognized

scholar in the area of First Amendment Law. His

writing on freedom of expression and religion has

appeared in law reviews published by Northwestern,

Emory, Notre Dame, ohio State, and Washington and

Lee. McDonald clerked for Chief Justice William H.

Rehnquist during the court’s 1989 –90 term.

reprinted with permission of the BYU Law Review.




leGal research & WritinG proGraM MAkES AN IMPACT oN STUDENTS’ SUCCESS

Recent Scholarly Activity by Legal

Research and Writing Faculty

Mireille Butler, 5 Practical Steps to ensure Your Students Listen – You Can Catch more Flies with Honey!, law teacher, forthcoming spring 2012 (institute for law teaching and learning).

Mireille Butler and hilary reed, Teaching the Bar Performance Test, 2012 aals conference, legal research and Writing section, Washington, d.c. (Forthcoming January 2012).

pepperdine hosted the los angeles legal Writing institute (lWi) Workshop in december 2010. hilary reed made a presentation, “Grading papers and handling student conferences: how to Grade papers Without losing your Mind; effective comments; Best practices” at the conference and is serving on the program Book subcommittee for the december 2011 lWi workshop.

\By Jenny rough (’99)

Good lawyers think and write with clarity and precision. their arguments are

logical and supported by authority, and their oral or written expression of those

arguments is cogent and coherent. at pepperdine university school of law, the first

year legal research and Writing program consists of a rigorous year-long course

designed to equip students to strengthen their ability to research, analyze, and write.

the fall semester is dedicated to objective writing: first-year students are required to

complete a closed library memo (where case law and relevant statutes are provided

by the instructor), and an open library memo (where students research the law

themselves).

the best way to learn writing is to do writing, so students are given individualized

feedback on their writing and on their first assignment students are required

to revise their initial submission and resubmit it. “the reason why one of our

assignments requires students to revise the first draft of their memo is that most

attorneys improve their legal research and writing skills based on the feedback and

comments received from supervisors,” says Mireille Butler, assistant professor of law

and interim director of the legal research and Writing program.

at the end of each term, students are given a two-part exam consisting of a

Bluebook citation test and a multiple choice section quizzing students on the

material covered over the course. the spring semester exam adds a third component:

a performance test. “exams serve a great purpose,” says Butler. “i went to a law

school that didn’t have a legal research and Writing exam, and i’m converted. our

students know so much more earlier on.”

students who wish to have additional opportunities to hone their research and

writing skills have numerous opportunities to do so. the law school supports four

student-edited journals and offers each semester an array of seminars and other

courses that provide writing experiences for students. Moreover, professor steve

schultz, assistant professor of law, serves as an upper-division legal research and

writing professor and teaches courses in writing for second- and third-year students.

Butler says she receives e-mails all summer long from students who thank her

for pepperdine’s demanding program and to share stories of receiving high praise

from their supervising attorneys in their summer program. “What we’re doing at

pepperdine is working,” she says.

from left: Steve Schultz, mireille

Butler, Hilary Reed, Nancy mcGinnis,

and Amy Levin


during the last decade, pepperdine has dramatically expanded its clinical offerings

recognizing “the power of clinical experiences to engage and expand students’ expertise and

professional identity through supervised responsibility for clients” as noted by the 2007 report

on legal education by the carnegie Foundation for the advancement of teaching. pepperdine

students today have many opportunities to enrich their education through participation in one

of the six pepperdine clinics maintained by the law school. the clinical program gives students

the ability to serve low income families and individuals across the region while also gaining

hands-on experience in the practice of law.

directed by Brittany stringfellow otey, assistant professor of law, the Legal Aid Clinic and the Family Law Clinic are both housed in the union rescue Mission, one of the largest homeless

shelters on los angeles’ skid row. there, student law clerks help clients with family law issues, in

addition to tickets and warrants, expungements, applications for homeless court, credit, housing,

taxes, and benefits. the Special Education Advocacy Clinic, directed by richard peterson,

assistant professor of law and former president of the orange county regional center, educates

students about the nature of disabilities—such as autism, attention deficit disorder, and cerebral

palsy—and provides opportunities for them to assist in the assessment of their clients’ special

education legal needs and to represent them in the resolution of any disputes that may arise. nidya

paredes (’06, Jd ’09) serves as associate director of the clinic.

the Asylum Clinic, directed by Judge Bruce einhorn, who enjoyed a distinguished career as a

federal immigration judge before helping to found the pepperdine clinic, provides law students

the opportunity to represent indigent and underprivileged foreign-born individuals who seek

asylum in the united states. the clinic’s primary focus is on claims of religious persecution,

but extends to others with well-founded fears of persecution on recognized grounds. susan hill

(Jd ’93) and emily allen (Jd ’05), who are experienced practitioners in the field, serve as supervising

attorneys in the clinic. the straus institute for dispute resolution operates two additional clinics.

the Mediation Clinic provides students the opportunity to serve as a mediator in small claims

court cases and other referred disputes. the Investor Advocacy Clinic, which was founded

through a generous grant from the Financial industry regulatory authority (Finra) is led by

director robert uhl, a partner in the law firm of aidikoff, uhl & Bakhtiari and a leader in the

field, and associate director, Judith hale norris, formerly vice president of Finra. students in

the clinic provide legal counsel to clients who have been wronged by their brokerage firms and

don’t have the financial resources to pay legal fees.

clinical education proGraM PREPARES STUDENTS FoR PRACTICE AND PRovIDES NEEDED SERvICES To THE CoMMUNITY

\By Jenny rough (’99)

Recent Publications from

Clinical Education Faculty

richard M. peterson Caught in the Cross-Fire: The Psychological and emotional impact of the individuals with Disabilities education Act (iDeA) upon Teachers of Children with Disabilities: A Therapeutic Jurisprudence Analysis, int’l J.l. & PSychiatry (forthcoming).

The Persistence of Low expectations in Special education Law Viewed Through the Lens of Therapeutic Jurisprudence, 33 int’l J.l. & PSychiatry 375 (2009)

laurie B. seraFinoLife Cycles of Revolutionary Upheavals Through Bob Dylan’s eyes, 38 fordham urb. l.J. (forthcoming 2011).

No Walk in the Dog Park: Drafting Animal Cruelty Statutes to Resolve Double Jeopardy Concerns and eliminate Unfettered Prosecutorial Discretion 78 tenn. l. rev. (forthcoming 2011).

from left: Brittany Stringfellow Otey,

Richard Peterson, Laurie Serafino,

Bruce einhorn


Bernard JaMesProfessor of Law

Jd university of Michigan, 1983BGs university of Michigan, 1977

Articles

SROs, Safe Schools, and the interagency Agreement, naSro J. School Safety, spring 2010

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

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

The Safe Schools movement and SRO Liability, naSro J. School Safety, summer 2009.

Safe Schools and Special education Students, naSro J. School Safety, spring 2009.

Janet e. kerrexecutive Director, Geoffrey H. Palmer Center

for entrepreneurship and the Law and Laure

Sudreau-Rippe endowed Chair in Law

llM new york university law school, 1979Jd pepperdine university, 1978Ba pepperdine university, 1975,

summa cum laude

Articles

The Financial meltdown of 2008 and the Government’s intervention: much-Needed Relief or major erosion of American Corporate Law? The Continuing Story of Bank of America, Citigroup, and General motors, 85

St. John’S l. rev. 49 (2011).

The Creative Capitalism Spectrum: evaluating Corporate Social Responsibility Through a Legal Lens, 81 temP. l. rev. 831 (2009).

A New era of Responsibility: A modern American mandate For Corporate Social Responsibility, 78 umkc l. rev. SymPoSium iSSue 327 (2009).

douGlas W. kMiecProfessor of Constitutional Law and Caruso

Family Chair in Constitutional Law

Jd university of southern california, 1976Ba northwestern university, 1973,

with honors

News

professor kmiec returned to the law school faculty in June 2011, following his distinguished service from 2009 to 2011 as the united states ambassador to Malta.

Books

the american conStitutional order (with stephen B. presser, John c. eastman & raymond B. Marcin) (lexisnexis 3d edition 2009 & 2011 supp.).

the hiStory, PhiloSoPhy, and Structure of the american conStitution (with stephen B. presser, John c. eastman & raymond B. Marcin) (lexisnexis 3d edition 2009 & 2011 supp.).

individual rightS and the american conStitution (with stephen B. presser, John c. eastman & raymond B. Marcin) (lexisnexis 3d edition 2009 & 2011 supp.).

Presentation

“secularism crucified,” university of southern california, university-wide lecture (september 13, 2011).

kristine s. knaplundProfessor of Law

Jd university of california, davis, 1977Ba oberlin college, 1974

Articles

Synthetic Cells, Synthetic Life, and inheritance, 45 valParaiSo l. rev. 1361 (summer 2011).

The New Uniform Probate Code’s Surprising Gender inequities, 18 duke J. gender l. & Pol’y 335 (spring 2011).

Charity for the Death Tax?: The impact of Legislation on Charitable Requests, 45 gonzaga l. rev. 713 (2010).

The Right of Privacy and America’s Aging Population, 86 denver u. l. rev. 439 (2009).

Presentations

“the uniform probate code: remaking of american succession law,” symposium at the university of Michigan law school, american college of trust and estate counsel (oct. 2011).

“the new Biology: What do estate planners need to know about assisted reproduction?” ucla/ceB estate planning institute (May 2011).



edWard J. larsonUniversity Professor and Hugh and Hazel

Darling Chair in Law

phd university of Wisconsin, 1984Jd harvard university, 1979Ma university of Wisconsin, 1976Ba Williams college, 1974

Book

an emPire of ice : Scott, Shackleton, and the heroic age of antarctic Science (yale univ. press 2011).

Book Chapter

Biology and the emergence of the eugenics movement, in biology and ideology from deScarteS to dawkins, (d. alexander and r. numbers, eds., chicago university press, 2010).

Articles

medical Rationing, Death Panels and the Rising Cost of Health Care, 33 whittier l. rev. (forthcoming 2011).

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

Putting Buck v. Bell in Scientific and Historical Context: Response to Victoria F. Nourse, 39 PePP. l. rev. (forthcoming 2011).

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

Public Science for a Global empire: The British Quest for the South magnetic Pole, 102 iSiS 1 (2011).

Presentations

professor larson has delivered illustrated lectures about his new book, empire of ice, at the royal society of london, the reform club in london, and the california club in los angeles, among other venues. he has given interviews about the book to the BBc, the Guardian newspaper, and the scientific journal Nature, among others.

khrista MccardenAssociate Professor of Law

Jd harvard law school, 2003, magna cum laude

aB harvard university, 1998, cum laude

Articles

Dual-Qualified Structures: A Tax-efficient Solution for Charitable Giving in the U.S. and U.K., family foundation adviSor, september/october 2008.

Charitable Uses in the U.S., offShore inveStment, July/august 2007 (published in association with 17th oxford offshore symposium, Jesus college, oxford university) (with richard cassell).

Presentations

“transatlantic Giving,” step philanthropy conference (september 2008).

“‘What if you have u.s. donors?’ Major Gift tax issues, interactive Workshop for Fundraisers and advisors,” european association for planned Giving (november 2007, March 2008, and september 2008).

Barry p. McdonaldProfessor of Law

Jd northwestern university school of law, 1988, cum laude

BBa loyola university of chicago, 1981

Articles

Censorship and the media: A Foreward, 25 notre dame J.l. ethicS & Pub.Pol’y 1 (2011).

The emerging Oversimplifications of the Government Speech Doctrine: From Substantive Content to a “Jurisprudence of Labels”, 2010 b.y.u. l. rev. 2071 (2011).

The Supremes: Conservative Consolidation, california lawyer (september 2011).

The Supremes: Selective minimalism, california lawyer (september 2010).

Getting Beyond Religion as Science: “Unstifling” Worldview Formation in American Public education, 66 waSh. & lee l. rev. 587 (2009).

JaMes M. McGoldrick, Jr.Professor of Law and Director,

international Programs

Jd university of chicago, 1969Ba pepperdine university, 1966

Articles

Speech: A message From mind to mind, 61 okla. l. rev. 1 (2008).

Discretionary Points: A Grading mystery, the law teacher, spring 2007, at 6.


[t]here is a crucial battle playing out in the world of internet

access provision. While the internet is the natural home of

competing business giants and warring digital avatars, the

contest that will have the most sweeping ramifications for the

future of the internet is the turf war being waged between the

Fcc on the one hand and the Federal trade commission (Ftc)

and the department of Justice (doJ), on the other. nothing less

than jurisdiction over the development of the internet is at

stake.

Jurisdiction over internet access provision is not the first

confrontation between these particular government agents . . .

[b]ut it is the current iteration of the Fcc’s “net neutrality”

regulations that has generated the latest contest. roughly defined,

net neutrality encompasses principles of commercial internet

access that include equal treatment and delivery of all internet

applications and content. For some, net neutrality stands further

for the proposition that internet access operators should not be

permitted to provide different qualities of service for application

providers (e.g., guaranteed speeds of transmission), even if those

application providers can freely choose their desired quality of

service. net neutrality has reinvigorated . . . an underlying inter-

agency tug of war [between the Fcc and the doJ/Ftc] that reaches

deep within, and far beyond, the communications industry.

although the two regimes [regulation and antitrust law]

share a commonality of purpose—to protect consumers and to

Fcc reGulation versus antitrust: hoW net neutrality is deFininG the Boundaries

By Babette BoliekboSton college law review (forthcoming)

the assertion of jurisdiction by the Federal

Communications Commission (FCC) over any

aspect of the Internet ecosystem has raised

populist, congressional, and even judicial rhetoric

to a crescendo and resulted in a recent vote to

defund the boundaries between these regulatory

and antitrust camps. Boliek’s article places the

current crisis squarely in the context of the long-

standing jurisdictional struggle between regulation

and antitrust law. Focusing on recent case law, her

article examines the jurisdictional framework to

classify possible jurisdictional overreach.

20PEPPERD INE LAW: sPEc IAL fAcuLty ED It IoN 20pepperd ine laW

promote allocative efficiencies in production—the two have

quite distinct, predominately opposing, means of securing

social benefits. . . . the battle between these two regimes may

be broadly summarized in a single issue . . . : in the face of the

industry-specific regulator, what is (or what should be) the role

of antitrust law?

antitrust law preserves the process of competition across

all industries by condemning anticompetitive conduct when it

occurs. in contrast, industrial regulation by its nature is a public

declaration that, in a given industry, market forces are too weak

or underdeveloped to produce the consumer benefits that are

realized in competitive markets. . . . not surprisingly, regulatory

agencies were historically created as substitutes for market

forces in the few markets that, by the nature of the product

or technology, were natural monopolies, or severely prone to

monopoly. therefore, the threshold determination of which

industries are to be singled out for industry-specific regulation,

and to what degree, is of vital importance. . . .

the net-neutrality debate has brought attention to the larger

concerns related to the boundaries between the Fcc and

antitrust authorities. the shaping of net-neutrality regulatory

policy has operated under the assumption that the Fcc has

the authority by virtue of its ancillary jurisdiction to regulate

internet transmission providers. this confidence in the Fcc’s

scope of authority proved to be misplaced by the d.c. circuit’s

recent decision in Comcast Corporation v. FCC [where the

court] clarified that the Fcc may use its ancillary jurisdiction

only when the proposed action is specifically related to the

agency’s mandated responsibilities as congress delineated in

the communications act. in an act of superior confidence or of

sheer foolishness, the Fcc has subsequently enacted three formal

net-neutrality rules based on the same jurisdictional premise

that was defeated in Comcast . . . .

the open-ended nature of the Fcc’s mandate . . . has

historically allowed the Fcc to expand its jurisdictional reach far

beyond the industries and problems within the contemplation of

the original, legislative drafters. such jurisdictional expansion is

what critiques of net neutrality insist is occurring now as the Fcc

would assert jurisdiction over aspects of the internet ecosystem.

the legal uncertainty of Fcc authority has led the Fcc chief

commissioner and some commentators to search for more

secure jurisdictional grounds for net neutrality rulemaking—to

figuratively place the marketplace for internet service providers

(isps) deeper within the regulated state and, concomitantly,

perhaps further out of reach of antitrust law. . . .

ironically, jurisdiction over wireless internet access, the

transport system not subject to the recent net neutrality rules,

is the one technology where Fcc jurisdiction is most easily

asserted. Wireless internet access can be regulated under the

Fcc’s title iii authority over all broadcast licenses by direct

insertion of regulatory terms and conditions into the operators’

spectrum license agreements. in addition to licenses, the Fcc

shares oversight responsibilities with antitrust authorities with

respect to any merger involving a regulated, communication

company and can dictate onerous terms that the parties must

accede to in order to close the deal. . . .

the recent Comcast decision should not be dismissed as

an inconvenient hurdle to be sidestepped by reclassification;

rather it marks a pivotal invitation to congress to redefine the

boundaries between the Fcc and antitrust authorities. . . . Before

that can be done, however, the rules of the road—the issue of

jurisdiction—must be clearly decided.

Babette Boliek, JD, PhD, associate professor of law, focuses her research and writing on analyzing legal issues in the

fields of administrative, antitrust, and communications law with particular emphasis on the effects of regulations on the

U.S. telecommunication industry. Her most recent article challenges the various jurisdictional theories that underpin

the Federal Communications Commission’s (FCC) new net-neutrality regulations. In addition, her article pinpoints the

tensions between FCC regulation and antitrust law in the Internet ecosystem. Boliek writes on this topic because of its

relevance in today’s regulatory environment as both the United States Court of Appeals for the D.C. Circuit and Congress

have expressed grave doubt as to whether the FCC’s jurisdictional limits permit the agency to promulgate net neutrality

rules of any kind.

reprinted with permission of the Boston College Law Review. Footnotes have been omitted. the full excerpt is available at lawmagazine.

pepperdine.edu.

21 LAWmAgAz ine .PePPeRD ine . eDU21 laW.pepperd ine . edu

Multiculturalism has long served as a principle unifying

various philosophical, political, and sociological

programs that place a high value on culture and

cultural groups. yet within multiculturalism’s framework lies a

recent trend towards a “new multiculturalism” which focuses

not simply on principles of recognition and inclusion, but on

broader principles of group autonomy and self-government.

however, as the claims of new multiculturalism have evolved,

so has there emerged a growing resistance to the possibility of

ceding authority and autonomy to cultural groups. . . .

of course, for there to be a “new” multiculturalism, there must

also be an “old” multiculturalism. the “old” multiculturalism

largely focused on the recognition of previously marginalized

minority groups as an essential feature of liberalism’s dedication

to the principles of equal respect and equal dignity. . . . thus,

the great multicultural debates of the late 20th century—and

even in the early 21st century—followed this same script,

centering on such questions as minority representation in higher

education, the constitutionality of prayer in public schools,

the incorporation of religious views into public discourse, and

permitting religious symbols on government property. in this

way, the old multiculturalism focused on the importance of

recognizing and integrating minority groups into the public

sphere.

increasingly, however, these debates are becoming secondary

to a “new” multiculturalism. in the “new” multiculturalism,

minority groups—especially religious minority groups—are less

concerned with receiving recognition and more concerned with

maintaining autonomy. philosophically, the new multiculturalism

conceives of minority identity as embodied not only in

symbols and histories, but also in rules and practices that

often constitute an independent legal order. and for minority

communities to maintain their identity, they must also find a

way to retain authority over the interpretation, application,

and enforcement of communal rules within their membership.

accordingly, the new multiculturalism looks less for symbolic

integration and more for jurisdictional differentiation. put

differently, if in the past we debated multicultural dilemmas,

we now find ourselves increasingly forced to navigate multilegal

conflicts.

By contrast to the relative success of the old multiculturalism,

the philosophy and politics of the new multiculturalism have not

faired well. indeed, the supreme court has met claims—from the

free exercise claims of native americans to the associational

claims of the christian legal society—with strong skepticism,

reliGious arBitration and the neW MulticulturalisM: neGotiatinG conFlictinG leGal orders

By Michael a. helfand86 nyu law review (forthcoming 2011)

this article reconsiders how courts

might use arbitration law to respond

to contemporary debates over

the role of religious law and religious

tribunals under U.S. law. There is a trend

toward what he has termed the “new

multiculturalism,” where conflicts between

law and religion are less about recognition

and symbolism and more about conflicting

legal orders. Nothing typifies this trend

more than the increased visibility of

religious arbitration, whereby religious

groups use current arbitration doctrine

to have their disputes adjudicated before

religious courts and in accordance with

religious law.

however, with growing skepticism regarding the

oppressive potential of religious majorities, critics

have questioned whether religious arbitration has any

place in a regime dedicated to individual liberties. in

light of these trends, helfand addresses the following

question: under what circumstances should u.s. courts

enforce arbitration awards issued by religious courts in

accordance with religious law?

in answering this question, he proposes two reforms

to current arbitration doctrine in order to meet the

challenges of the new multiculturalism: (1) courts

should redefine the scope of enforceability of religious

arbitration awards by limiting the application of the

public policy exception to vacate religious arbitration

awards and (2) courts should expand the application

of unconscionability to void religious arbitration

agreements.


largely unwilling to grant religious and cultural groups increased

autonomy and self-governance rights.

however, while public law has not embraced the new

multiculturalism, private law most undoubtedly has. indeed, for

the better part of a century, courts have allowed minority groups

—most notably religious groups—to piggyback on the arbitration

system in order to legally enforce religious arbitration awards in

u.s. courts. as a result . . . co-religionists can have their disputes

resolved by religious authorities in accordance with religious

law—and for that resolution to receive the binding force of

u.s. law. in this way, religious arbitration courts serve as the

quintessential institution of the new multiculturalism, providing

religious groups with the law-like autonomy that has been

withheld under public law. . . .

however, the attack on religious arbitration has now reached

the shores of the united states. this attack, which began

with questions about the procedural safeguards in religious

arbitration, has slowly morphed into a national movement

unwilling to cede any sort of jurisdictional authority to religious

tribunals. . . .

it is, of course, far from surprising that attempts to formally

introduce religious arbitration into state legal systems have met

with such ferocious resistance. religious arbitration courts are

perceived as challenging the nation-state’s status as the exclusive

source of legitimate law. . . .

this article poses the following question: when should

courts enforce the awards of religious arbitration tribunals

adjudicating disputes in accordance with religious law? at

the heart of this question is a debate over whether the trend

towards the new multiculturalism—emphasizing the need of

communities to secure some degree of autonomy and self-

governance—can be embodied in concrete institutions without

threatening fundamental individual liberties. in line with recent

scholarship emphasizing the importance of First amendment

institutions, this article argues that religious arbitration courts

serve the freedom-enhancing role of the new multiculturalism

by providing religionists with a forum to adjudicate disputes in

accordance with their own religious beliefs and practices. in this

way, religious arbitration courts “contribute to . . . the reality

of religious freedom under the law” by serving as part of the

infrastructure that makes religious freedom possible.

MICHAEL A. HELFAND, JD, PhD, associate professor of law

and associate director of the Diane and Guilford Glazer

Institute for Jewish Studies, has worked extensively

on the intersection of group rights and the law,

including religious arbitration, Equal Protection Clause

jurisprudence, and political theories of toleration. After

completing his JD and PhD (in political science) from

Yale and practicing in the area of complex commercial

litigation with Davis, Polk & Wardwell, Helfand joined

the Pepperdine faculty in 2010. He believes the issue

addressed in this article is important today because, in

contrast to more extreme views, arbitration law can

serve both as a tool to promote religious institutions

while still protecting the most vulnerable members of

our society.

reprinted with permission of the NYU Law Review.




in the highly politicized struggle over employment and

consumer arbitration, expectations regarding the future of

the arbitration law and policy shift dramatically with the

variable political climate in Washington. . . .

underlying today’s debate is a fundamental disagreement

about the ability of binding arbitration to provide justice for

consumers and employees, a debate that in some respects

reflects the larger political divide. although there is a growing

body of empirical research on arbitration in employment and

consumer settings, proponents and opponents of arbitration

both find empirical support for their positions. some studies

may be flawed by polemic, others offer considerable room

for interpretation, and no single study, however carefully

constructed, has offered a complete picture.

if we are ever to bridge the gap in understanding and

perception, we must find a way to address a number of tough

realities. First, there is the difficulty of obtaining sufficient

the debate surrounding enforcement of

predispute arbitration agreements in

standardized consumer and employment

contracts has reached fever pitch with the

publication of three Supreme Court cases: Stolt-

Nielsen S.A. v. AnimalFeeds International, 130 S.

Ct. 1758 (2010); Rent-A-Center, West v. Jackson,

130 S. Ct. 2772 (2010); and AT&T Mobility LLC v.

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

in its zeal to further its evolving vision of the Federal

arbitration act the court has eliminated key safeguards aimed

at ensuring fundamental fairness to consumers and employees

in arbitration. the court’s relative inflexibility is a significant

contributor to legislation aimed at dramatically restricting the

use of predispute arbitration agreements. unfortunately, these

legislative responses, like the court’s decisions, lack a solid

empirical foundation. neither of the «extremes» represented by

court decisions or proposed legislation are the best courses.

a more thoughtful approach may lead to more appropriate

process choices. two agencies are currently evaluating whether

to outlaw arbitration in a broad range of consumer contracts,

increasing the urgency of this topic.

By thomas J. stipanowichthe american review of international arbitration

(forthcoming 2012)

THE THIRD ARBITRATIoN TRILoGY: Stolt-NielSeN, ReNt-A-CeNteR, CoNCepCioN, AND THE FUTURE oF AMERICAN ARBITRATIoN

24PEPPERD INE LAW: sPEc IAL fAcuLty ED It IoNpepperd ine laW

reliable data on largely private arbitration processes. second,

there is a growing and shared recognition that data harvested

in one specific context is of little or no relevance to other

scenarios, and that empirical research must take account of a

variety of contextual factors including the transactional setting;

the status or identity of disputants (such as employees); the role

of counsel in dispute resolution; the rules governing arbitration

and their provenance; as well as the quality of administration

or regulation by the arbitral institution (aaa, Finra, etc.), if

any. as one scholar concludes, the nature and performance

of arbitration procedures in different settings presents a very

complex picture, making it impossible to “draw confident

conclusions about the effect of invalidating wide swaths of

arbitration agreements.”

third, we cannot simply examine and evaluate arbitration in

isolation, but must compare its operation to the “default option,”

going to court. critically, a recent Federal trade commission

study examining the need for changes in the debt collection

system concluded “that neither litigation nor arbitration

currently provides adequate protection for consumers.”

Fourth, there is the difficulty of identifying appropriate

parameters for measuring and comparing the operation of

arbitration, including process costs, time to resolution of the

dispute, outcomes, and user perceptions. in some circumstances

“outcomes” may require measurement by qualitative, as well as

quantitative means.

Fifth, comparisons between adjudicative processes must factor

in the potential impact of pretrial dismissals, which are much

more likely in court than in arbitration, and defaults. sixth,

there is the much-discussed but little-understood “repeat player”

dynamic, which has gripped academic imaginations for a number

of years but which may be more complex and multifaceted than

previously posited.

Good decision making about process choices must begin

with careful, distanced reflection on what we need to know

and how we get it. the inquiry should be framed to enable us

to move well beyond the virtually meaningless “arbitration is

good/arbitration is bad” dichotomy to look at the capabilities,

limitations, and real costs of different process choices as played

out in the dynamics of different contractual settings. since

dodd-Frank decreed that regulatory bodies should examine

arbitration in the context of different consumer finance

transactions and of securities brokerage disputes, transactional

scenarios within these arenas are obvious starting points. Given

proper time, space, and technology, we would want to answer

questions like these in each context:

(1) What are the essential elements (measured in terms of process

costs, cycle time, due process, and outcomes) of a satisfactory

system of justice for consumers?

(2) arbitration

a. are there forms of binding arbitration that meet the

criteria in (1)?

b. to the extent they do not, is it possible to meet

these criteria through enhanced statutory standards

for judicial oversight, regulation by a public body,

or other means?

c. What are the transaction costs associated with

ensuring that arbitration meets the criteria in (1),

and how are they/should they be borne?

(3) the courts

a. how well do court procedures meet the criteria in

(1)?

b. to the extent they do not, is it possible to conform

court procedures to these criteria?

c. What are the transaction costs associated with

providing court procedures that meet these criteria?

(4) are there other cost-beneficial process options (administrative

hearing procedures, other “hybrid” processes) to satisfy the

criteria in (1)?

(5) to what extent might other approaches, employed alongside

or in advance of binding adjudication (customer service

desks, hotlines, mediation, etc.), contribute to effective

management of conflict?

(6) to what extent might the effective use of online dispute

resolution (odr) affect the foregoing calculi?

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

class actions?

Thomas J. Stipanowich holds the William H. Webster

Chair in Dispute Resolution and is academic director

of the Straus Institute for Dispute Resolution. He has

written widely in the dispute resolution field, especially

in the area of arbitration, publishing several books and

numerous articles. He currently is serving as an advisor

on the ALI Restatement of U.S. Law on International

Arbitration. In 2008 he was honored with the

D’Alemberte/Raven Award, the ABA Dispute Resolution

Section’s highest honor, for his contributions to the

field.

reprinted with permission of the American Review of

international Arbitration. Footnotes have been omitted.

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


GreGory s. McnealAssociate Professor of Law

Jd case Western reserve university, 2006Mpa american university, 2003,

with distinctionBa lehigh university, 1999

News

professor Mcneal has recently testified before congress on jihadist internet activities,

consulted with members of the united states congress on cyber warfare legislation and religious extremism and recruiting, and engaged in advisory work with the national security agency and the department of defense.

Book Chapter

Are Targeted Killings Unlawful Killings: A Case Study in empirical Claims Without empirical Proof, in targeted killingS: law & morality in an aSymmetrical world, (claire Finkelstein, Jens david ohlin, and andrew altman eds., oxford university press, forthcoming 2012).

Articles

The Status Quo Bias and Counterterrorism Detention, 101 J. crim. l. & criminology 855 (2011).

A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements, 59 dePaul l. rev. 943 (2010).

institutional Legitimacy and Counterterrorism Trials, 43 u. rich. l. rev. 967 (2009).

anthony MillerProfessor of Law

Jd pepperdine university, 1977 Ma california state university, long Beach,

1972Ba california state university, long Beach,

1967

News

on March 10, 2011, professor Miller was appointed to a five-year term as a commisioner on the los angeles city employee relations Board. the board hears labor relations matters between the city and unions which represent all employees in the city, similar to the role of the national labor relations Board.

Book

family law: caSeS, materialS, and ProblemS (lexis 3d ed. forthcoming 2012).

Article

The Case for the Genetic Parent: stanley, Quilloin, caban, lehr, and Michael h. Revisited, 53 loy. l. rev. 395 (2007).

derek MullerAssociate Professor of Law

Jd university of notre dame, 2007, summa cum laude

Ba hillsdale college, 2004, summa cum laude

Articles

more Thoughts on the Compact Clause and the National Popular Vote: A Response to Professor

Hendricks, 7 election l.J. 227 (2008).

The Compact Clause and the National Popular Vote interstate Compact, 6 election l.J. 372 (2007).

Grant nelsonWilliam H. Rehnquist Professor of Law

Jd university of Minnesota, 1963 Ba university of Minnesota, 1960

Books

contemPorary ProPerty (with dale a. Whitman, colleen Medill & shelley ross saxer) (West 4th ed. forthcoming).

equitable remedieS, reStitution, and damageS: caSeS and materialS (West 8th ed. 2011).

caSeS and materialS on real eState tranSfer, finance, and develoPment (West 8th ed. 2009).

Article

Confronting the mortgage meltdown: A Brief for the Federalization of State mortgage Foreclosure Law, 37 PePP. l. rev. 583 (2010).

Presentations

“the Mortgage Meltdown: Where do We Go from here?” Western new england university school of law (Mar. 7, 2011).

Moderated the presentation of Winning scholarly papers, 2011 aals Meeting (Jan. 2011).

Moderated Federalist society tenure track Faculty scholars presentation, aals Meeting (Jan. 2011).

Member of 2010–2011 aals scholarly papers competition selection committee (2010–11).

“Mortgage Foreclosure crisis: does state pro-debtor Foreclosure law Worsen the Bill for Federal taxpayers?” university of pennsylvania school of law, student Federalist society chapter (Feb. 8, 2010).



GreGory l. oGdenProfessor of Law

llM columbia university, 1981 llM temple university, 1978 Jd university of california, davis, 1973 Ba university of california, los angeles,

1970, cum laude

Book Chapter

California Public Administrative Law, in 41 (chapters 470 to 472B) and 41a (chapters 473 to 474c) california formS of Pleading and Practice annotated (lexisnexis, quarterly updates, including december 2006, april 2007, september 2007, august 2009, January 2010, February 2011, august 2011).

Report

Revised model State Administrative Procedure Act, national conference of commissioners on uniform state laws (nccusl) (2006-2010).

Presentation

“new rules of evidence and procedure for the state Bar of california,” training for prosecutors and defense counsel in los angeles and san Francisco (Jan. 2011).

l. tiMothy perrinVice Dean and Professor of Law

Jd texas tech university, 1987, cum laudeBa lubbock christian university,

summa cum laude

Books

the art and Science of trial advocacy (with h. Mitchell caldwell and carol a. chase) (lexis 2d ed. 2011).

caSe fileS for baSic trial advocacy (with h. Mitchell caldwell, carol a. chase & naomi harlan Goodno) (lexis 2009).

Article

The Perplexing Problem of Client Perjury, 76 fordham l. rev. 1707 (2007, symposium issue).

roBert popovichProfessor of Law

Jd pepperdine university, 1989, summa cum laude

MBt university of southern california, 1977Bs california state university, northridge,

1975, with honors

News

professor popovich is serving as a visiting professor of law at southwestern law school during the Fall 2011 semester and will return to pepperdine for the spring term.

Book

federal income tax (exam pro series) (West 2d ed. 2007).

roBert J. pushaWJames Wilson endowed Professor of Law

Jd yale university, 1988Ba la salle college, 1980, summa cum laude

Book Chapters

The enemy Combatant Decisions, in national Security, civil libertieS, and the war on terror (m. katherine b. darmer, richard d. fybel, edS. 2011).

Justifying Wartime Limits on Civil Rights and Liberties, in national Security, civil libertieS, and the war on terror (m. katherine b. darmer, richard d. fybel, edS. 2011).

Articles

Limiting Article iii Standing to “Accidental” Plaintiffs: Lessons from environmental and Animal Cases, 45 ga. l. rev. 1 (2010).

Creating Legal Rights for Suspected Terrorists: is the Court Being Courageous or Politically Pragmatic?, 84 notre dame l. rev. 1975 (2009).

Presentation

“u.s. supreme court 2011 term,” ucla law school (september 2011).


peter roBinsonmanaging Director, Straus institute for

Dispute Resolution, and Associate Professor

of Law

Jd hastings college of law, 1980Ba university of california, san diego, 1977,

magna cum laude

Articles

An empirical Study of Settlement Conference Nuts and Bolts: Settlement Judges Facilitating Communication, Compromise, and Fear, harv. negot. l. rev. (forthcoming).

Opening Pandora’s Box: An empirical exploration of Judicial Settlement ethics and Techniques, 27 ohio St. J. on diSP. reSol. (forthcoming).

Settlement Conference Judge—Legal Lion or Problem Solving Lamb: An empirical Documentation of Judicial Settlement Conference Practices and Techniques, 33 am. J. trial advoc. 113 (2009).

Presentations

planned and Facilitated teaching adr in law schools, pepperdine university school of law, Malibu, california (June 2011).

“Mediating the litigated case,” calgary university school of law, calgary, canada (May 2011).

“how to teach a law school Mediation course for chinese professors,” Beijing arbitration commission, Beijing, china (funded by a grant by the u.s.-china legal cooperation Fund) (Jan. 2011).

shelley ross saxerProfessor of Law and Director, Wm. matthew

Byrne, Jr., Judicial Clerkship institute


Bs pepperdine university, 1980, summa cum laude

Books

environmental SuStainability: law and Policy (with craig “tony” arnold, hari osofsky & dan tarlock) (aspen forthcoming).

contemPorary ProPerty (with Grant nelson, dale a. Whitman, and colleen Medill) (West 4th ed. forthcoming).

Articles

The Fluid Nature of Property Rights in Water, 20 duke envtl. l. & Pol’y f. (forthcoming).

Plenty of Fish in the Sea? managing Water Rights Using Fishing Rights as a model, marq. l. rev. (forthcoming).

Presentations

“association for law, property, and society annual conference,” Georgetown school of law (Mar. 2011).

“expanding the First-year curriculum: Making course choices in the First year,” the southeastern association of law schools (seals) conference (July 2011).

Mark s. scarBerryProfessor of Law


aB occidental college, 1975, magna cum laude

Book

buSineSS reorganization in bankruPtcy: caSeS and materialS (with klee, newton & nickles) (4th ed. thomson-reuters-West forthcoming).

Articles

A Critique of Congressional Proposals to Permit modification of Home mortgages in Chapter 13 Bankruptcy, 37 PePPerdine l. rev. 635 (2010, symposium issue).

mortgage Wars episode V—the empiricist Strikes Back (or Out): A Reply to Professor Levitin’s Response, 37 PePPerdine l. rev. 1277 (2010).

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

John Leland and James madison: Religious influence on the Ratification of the Constitution and on the Proposal of the Bill of Rights, 113 Penn St. l. rev. 733 (2009).

Presentation

“the supreme court takes on Bankruptcy: clarity and confusion,” national association of attorneys General bankruptcy conference in austin, texas, oct. 26, 2011.



thoMas J. stipanoWichAcademic Director, Straus institute for

Dispute Resolution, William Webster Chair in

Dispute Resolution, and Professor of Law

Jd university of illinois, 1980, magna cum laude

Ma university of illinois, 1976Bs university of illinois, 1974,

highest honors

Books

college of commercial arbitratorS ProtocolS for exPeditiouS, coSt-effective commercial arbitration (college of commercial arbitrators,thomas J. stipanowich et al., eds., 2010).

reSolving diSPuteS: theory and Practice for lawyerS (with Jay Folberg, dwight Golann & lisa kloppenberg) (aspen publishers 2d ed. 2010).

Book Chapter

Revelation and Reaction: The Struggle to Shape American Arbitration, in contemPorary iSSueS in international arbitration and mediation: the fordham PaPerS 2010 (Martinus nijhoff publishers, forthcoming).

Article

The Third Arbitration Trilogy, colum. am. rev. int’l arb. (forthcoming).

Presentations

annual conference on dispute resolution, keynote speaker, Minnesota Bar association, Minneapolis, Minnesota (oct. 2011).

“the third arbitration trilogy and the Future of u.s. arbitration,” Worlds of Work: employment dispute resolution systems across the Globe, Fitzwilliam college, cambridge, england, July, 2011

national conference on teaching adr in law schools, co-organizer/Moderator, pepperdine university school of law, June 21-22, 2011.

deanell reece tachaDuane and Kelly Roberts Dean and Professor

of Law

Jd university of Michigan school of law, 1971, order of the coif

Ba university of kansas, 1968

Articles

Diversity in the Judiciary: A Conversation with Deanell Tacha, 59 u. kan. l. rev. 1037 (2011).

Training the Whole Lawyer, 96 iowa l. rev. 1699 (2011).

in memoriam: Requiem for a Goldsmith, 2010 b.y.u. l. rev. 353 (2010).

Women and Law: Challenging What is Natural and Proper, 31 nova l. rev. 259 (2007).

peter t. WendelProfessor of Law

Jd university of chicago law school, 1983, cum laude

Ma st. louis university, 1980Bs university of chicago, 1979, cum laude

Book

deconStructing legal analySiS: a 1l Primer (aspen 2009).

Articles

The Succession Rights of Adopted Adults: Trying to Fit a Square Peg into a Round Hole, 43 creighton l. rev. 815 (2010).

Protecting Newly Discovered Antiquities: Thinking Outside the “Fee Simple” Box, 76 fordham l. rev. 1015 (2007).

Maureen arellano WestonAssociate Dean for Research and Professor

of Law

Jd university of colorado, 1992 order of the coif

Ba university of denver, 1987, magna cum laude

Books

arbitration: caSeS and materialS (with stephen k. huber) (3d ed. forthcoming).

SPortS law: caSeS and materialS (and instructor’s manual) (7th ed. forthcoming).

Articles

NCAA Sanctions: Assigning Blame Where it Belongs, 52 b.c. l. rev. 551 (2011).

The Other Avenues of Hall Street and Prospects for Judicial Review of Arbitral Awards, 14 lewiS & clark l. rev. 929 (2010).

Presentations

“legal issues and the london 2012 olympic Games,” hot topics in sports and Business conference, national sports law institute, Marquette university school of law (oct. 21, 2011).

“sports law dispute resolution,” university of nevada, las vegas, nevada (June 2011).

“teaching arbitration in an adr survey course,” conference on teaching adr, Malibu, california (June 2011).



distinGuished visitinG proFessors

each year pepperdine laW WelcoMes distinGuished visitinG Faculty, laWyers, and JudGes into its classrooms to

inform, inspire, and enhance the

educational experience for students.

Meet some of our recent guests.

laWyersMARk A. BEHRENS, the Fall 2010 distinguished practitioner in residence, is a partner in the Washington, d.c.-based public policy Group of shook, hardy & Bacon llp and, for almost two decades, has been extensively involved in product liability law, defense litigation, liability reform, and counseling in the prevention of liability exposure.

RoGER CoSSACk, the spring distinguished practitioner in residence for five consecutive years and legal analyst for espn, melds his unique experience as a journalist and lawyer in his popular course on Media and the law.

CHARLES ESkRIDGE (Jd ’90), a partner with the commercial litigation law firm of susman Godfrey llp, in houston, texas, is the distinguished practitioner in residence for Fall 2011, teaching origins of the Federal constitution.

GARY HAUGEN, the founder, president, and ceo of human rights agency international Justice Mission (iJM), joined the school of law faculty as a distinguished practitioner in human rights in spring 2011 to teach a seminar titled human rights and the rule of law in the developing World. he will return to teach the course in spring 2012.

FacultyAkHIL REED AMAR, the Fall d & l straus distinguished visiting professor for six consecutive years, is the sterling professor of law and political science at yale law school and considered by many to be the most outstanding constitutional law scholar of his generation.

PAUL L. CARoN, one of the leading entrepreneurial tax scholars in the country, charles hartsock professor of law at the university of cincinnati, and editor of the popular TaxProf blog, joined pepperdine as the d & l straus distinguished visiting professor in the spring 2011. he will make a return visit in spring 2012.

LAURIE L. LEvENSoN, professor of law and the William M. rains Fellow at loyola law school, where she teaches evidence, criminal law, criminal procedure, ethics, anti-terrorism, and White-collar crime, will return to pepperdine to serve as a d & l straus distinguished visiting professor for spring 2012.

ELLEN PRYoR, the Fall 2010 d & l straus distinguished visiting professor, is the homer r. Mitchell endowed professor of law at the southern Methodist university dedman school of law and one of the country’s leading scholars in the field of torts.

JUSTICE MYRoN STEELE, the seventh chief justice of the delaware supreme court and the Fall 2010 and 2011 distinguished visiting Jurist, has presided over major corporate litigation and business governance disputes and writes frequently on issues of corporate document interpretation and corporate governance.

JUSTICE ALLEN LINDEN serves as distinguished visiting Jurist at the law school, teaching advanced torts seminar each spring. previously he served as supernumerary judge of the Federal court of appeal of canada and as judge of the supreme court of ontario.

JudGes

distinGuished visitinG proFessors


Dean Tacha hosts discussion With distinGuished WoMen JudGes“i spent 25 years on the united states court of appeals, and

in the process i met women whose journeys have been very

similar to my own, and they are journeys and stories that have

very little been told,” remarked dean deanell reece tacha as

she opened “hearing her story: reflections of Women Judges”

to an eager audience in the law school’s caruso auditorium on

september 23.

at the event, tacha, former circuit judge, u.s. court of appeals

for the 10th circuit, shared the stage with her distinguished panel

of guests: the honorable carolyn dineen king, circuit judge, u.s.

court of appeals for the Fifth circuit; the honorable dorothy W.

nelson, circuit judge, u.s. court of appeals for the ninth circuit;

and the honorable rosemary Barkett, circuit judge, u.s. court of

appeals for the 11th circuit.

“What happened to us in the early days of our careers and

where we are now in our careers is the story i’ve asked three of

my closest friends on the judiciary to tell,” tacha continued. the

event officially welcomed dean tacha, who took office June 1,

and served as a stop along her national tour.

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

Learn more about Dean Tacha’s national tour:

law.pepperdine.edu/tachatour

KenneTh W. STarr headlines the FiFth annual WilliaM French sMith MeMorial lectureken starr, president of Baylor university and former dean of

pepperdine school of law, returned to Malibu october 11 to

present the fifth annual William French smith Memorial lecture.

starr spoke on the topic “the Justice department: From reagan

to obama,” along with conversationalists and fellow justice

department colleagues F. henry habicht ii, a pioneering figure

in the areas of environmental business and policy and a

leading contributor to environmental innovation; ambassador

douglas W. kmiec (ret.), caruso Family chair and professor

of constitutional law at pepperdine school of law; and the

honorable carolyn B. kuhl, supervising judge of the civil

departments of the los angeles superior court. deanell reece

tacha, duane and kelly roberts dean of pepperdine law and

former judge of the u.s. court of appeals for the 10th circuit,

served as moderator.

named in honor of the former attorney general, the William

French smith Memorial lectures on law and the Judiciary serve as

an ongoing tribute to smith. smith served as u.s. attorney general

from 1981 to 1985 and was a longtime friend and confidant of

president ronald reagan. past speakers in the pepperdine series

include supreme court Justices anthony M. kennedy, sandra day

o’connor, clarence thomas, and samuel alito.

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

upcoMinG events

noveMBer 14 the straus institute presents a conversation with ken Feinberg

FeBruary 18 the 39th annual school of law dinner

FeBruary 23–25 the nootbaar institute presents: “the competing claims of law and religion”

March 1 dispute resolution law Journal symposium: “apology, Forgiveness, and reconciliation”


recent events

24255 Pacific Coast HighwayMalibu, California 90263

School of Law 310.506.4611

Straus Institute for Dispute Resolution 310.506.4655

Palmer Center for Entrepreneurship and the Law 310.506.4681

Nootbaar Institute on Law, Religion, & Ethics 310.506.7635

Alumni Affairs 310.506.6567

Moot Court 310.506.4654

pepperdine law - vol. 30, iss. 2 (fall 2011)

Documents

pepperdine law professors

law offices admissions

chase associate dean

cihak associate dean

animal law cases robert

director of web

assistant vice president

writing program