Law Commons^™

Introduction, B. E. Witkin

UC Law Journal

No abstract provided.

The Paradox Of Balancing Significant Interests, Stephen E. Gottlieb

UC Law Journal

In his Article, Professor Gottlieb argues that the United States Supreme Court does not consider the values underlying interests and, thus, the Court refuses to treat interests and rights similarly. By refusing to examine the values behind interests, the Court allows interests to dominate constitutional law to the detriment of rights. Professor Gottlieb's concern with the roles that interests and balancing play within constitutional analysis are manifested in several propositions considered in the Article.

First, Professor Gottlieb argues that many arguments about interpretation are logically irrelevant. If interpretive canons were consistently applied to both rights and interests, differences in outcomes …

Human Environment Of The Mind: Correcting Nepa Implementation By Treating Environmental Philosophy And Environmental Risk Allocation As Environmental Values Under Nepa, Victor B. Flatt

UC Law Journal

The National Environmental Policy Act (NEPA) requires all agencies to consider the environmental impact of any federal action that significantly affects the quality of the environment. Currently, certain important environmental impacts are not being considered in the NEPA analysis. These environmental impacts are associated with environmental risk allocation and environmental philosophy.

Professor Flatt argues that the failure to include the values of environmental risk allocation and environmental philosophy as environmental impacts under NEPA is inconsistent with a proper interpretation of the language and legislative history of that Act. The author argues that considering environmental risk allocation and environmental philosophy under …

You're The Top! Remarks Delivered At Justice Sullivan's 80th Birthday Celebration, B. E. Witkin

UC Law Journal

No abstract provided.

Thou Shalt Not Steal: Grand Upright Music Ltd. V. Warner Bros. Records, Inc. And The Future Of Digital Sound Sampling In Popular Music, Carl A. Falstrom

UC Law Journal

In Grand Upright Music Ltd. v. Warner Bros. Records, Inc., plaintiff was the copyright owner of "Alone Again (Naturally)"- a song written and recorded by Gilbert O'Sullivan. "Alone Again (Naturally)" was sampled in a subsequent song by rap artist Biz Markie. Although Biz requested permission to use the sample, his album was released before permission was granted. Plaintiff filed suit to enjoin the use of the sample by Biz. The United States District Court granted the injunction, referring Biz Markie and the other defendants to the United States Attorney for possible criminal prosecution. In its decision, the court equated sampling …

Administrative And Judicial Duties In The Trial Court After A Guilty Or No Contest Plea, George W. Nicholson

UC Law Journal

No abstract provided.

The Constitutionality Of The Freedom Of Choice Act Of 1993, Douglas A. Axel

UC Law Journal

The Freedom of Choice Act of 1993 is currently pending in both the House and the Senate. The purpose of this bill is to codify the Supreme Court's landmark holding in Roe v. Wade, which prohibited states from regulating abortion without a compelling interest for doing so. Like most things having to do with the right to abortion, the Freedom of Choice Act has been the subject of fierce political debate. Indeed, this political debate will likely result in the bill's demise.

This Note does not address these political issues, however. Instead, the author addresses a more fundamental constitutional issue: …

Sex, Promotions, And Title Vii: Why Sexual Favoritism Is Not Sexual Discrimination, Michael J. Levy

UC Law Journal

This Note considers whether a Title VII claim should exist where a supervisor promotes a person with whom he or she is in an romantic relationship, to the exclusion of other qualified applicants. Since the early 1980s, federal courts have expressed differing views as to the validity of such "sexual favoritism" claims. The difference in views stems mainly from a lack of clarity as to the meaning of the word "sex" in Title VII. In 1990, the EEOC issued a policy guidance disfavoring Title VII sexual favoritism claims where the underlying relationship is isolated, consensual, and romantic. Professor Joan E. …

Introduction, Joseph R. Grodin

UC Law Journal

No abstract provided.

Commensurability And Its Constitutional Consequences, Frederick Schauer

UC Law Journal

Philosophers have been debating the question whether all values are commensurable for at least a generation. Certain legal methodologies presuppose something akin to broadbased commensurability and the frameworks of certain legal structures recognize the irreducible incommensurability of values.

Professor Schauer does not attempt here to resolve the philosophical question whether values are or are not, as on ontological matter, commensurable. Instead, first he sketches the various positions of the commensurability debate. Second, he explains the constitutional implications of holding one position or another in the debate. Third, regarding the core of the argument, Professor Schauer offers a theoretical account of …

How Rights Are Infringed: The Role Of Undue Burden Analysis In Constitutional Doctrine, Alan Brownstein

UC Law Journal

The conventional understanding of fundamental rights in constitutional law recognizes three theoretically distinct issues: the existence of the right, the infringement of the right, and the government justification for the infringement. In practice, however, judicial inquiries regarding these categories of right, infringement, and justification often seem indistinct and intrinsically connected to each other. More specifically, courts have directed their attention to the first and third of these inquiries, only rarely addressing as a primary matter the question of what constitutes an infringement of a right. The Supreme Court's decision in Planned Parenthood v. Casey, however, departs from this tradition. The …

Public Values And Private Virtue, Suzanna Sherry

UC Law Journal

No abstract provided.

Why Limited Liability Company Membership Interests Should Not Be Treated As Securities And Possible Steps To Encourage This Result, Carol R. Goforth

UC Law Journal

The limited liability company (LLC) is the newest form of business entity in this country. An LLC combines many of the most desirable attributes of a partnership with the most desirable features of the corporate form-most significant of which is limited personal liability for all owners. The recent surge in the popularity of this organization is attributable to a 1988 Internal Revenue Service ruling that an LLC organized under the Wyoming statute was taxable as a partnership. This ruling sparked a virtual race to legislation, with all but six states enacting enabling statutes by mid-1994. Despite its popularity, the LLC …

Raymond L. Jullivan--Lawyer, Justice, Scholar, And Teacher, Uc Hastings College Of The Law

UC Law Journal

No abstract provided.

Personal Reminiscences: Justice Raymond L. Sullivan, John J. Vlahos

UC Law Journal

No abstract provided.

Shattering The Glass Ceiling: A Legal Theory For Attacking Discrimination Against Women Partners, Mark S. Kende

UC Law Journal

Historically women have experienced gender discrimination in employment and promotions, hitting a "glass ceiling" that prevents them from reaching the highest positions within academic institutions, corporations, and partnerships. Women partners are especially vulnerable to discrimination because federal and state anti-discrimination laws have been interpreted to protect "employees" not partners, who are "employers" by definition.

In his Article, Professor Kende tracks the progress of women in the legal profession and the glass ceiling that women encounter in trying to become partners and to reach the top management positions within partnerships. He argues that the implied covenant of good faith and fair …

Inheritance And Bankruptcy: The Meaning Of The "Fresh Start", Adam J. Hirsch

UC Law Journal

Modem bankruptcy law uses the date of the bankruptcy petition as a hypothetical "line of cleavage," dividing prepetition assets, which flow into the bankruptcy estate for distribution to prepetition creditors, from postpetition assets, which belong to the debtor. Thus the date of the petition marks a "fresh start" for the debtor. However, the Bankruptcy Code makes an exception to the "line of cleavage" for inherited assets: Any right to an inheritance arising up to six months after the date of the petition pours back into the estate, and is available to satisfy creditors' claims.

Professor Hirsch argues that the six-month …

The Modern Era In California Water Law, Brian E. Gray

UC Law Journal

California's water resources system is poised at a turning point. For the first time since the great era of water project development concluded, water has been directed away from the major water supply projects and reallocated to enhance water quality and instream flows in the Sacramento-San Joaquin Delta and to restore anadromous fish populations in the principal rivers of the Central Valley system.

In this Article, Professor Gray describes and evaluates the laws governing the reallocations of water that have been, or will likely be, engendered by these developments. He begins by reviewing the events that led up to these …

Science Misconduct And Due Process: A Case Of Process Due, Elizabeth Howard

UC Law Journal

Recent incidents involving possible misconduct on the part of prominent scientists have focused attention on the issues involved in determinations of science misconduct. Despite their notoriety, however, determinations of science misconduct are often marked by casual or nonexistent regard for the rights of the accused. Furthermore, a scientist who has been adjudged guilty of misconduct faces potential professional ruin.

This Note argues that the presence of this combination in science misconduct investigations constitutes a denial of due process to accused scientists. The author proposes creating an independent federal agency to deal with cases involving possible science misconduct, with a legal …

A Report On The California Appellate System, J. Clark Kelso

UC Law Journal

In this issue the Hastings Law Journal is proud to present a Special Report on the future of appellate justice in California. After a short Preface by the Editorial Board, we are honored to have two Introductions to the Special Report, written by Chief Justice Malcolm M. Lucas of the California Supreme Court and Bernard E. Witkin.

The centerpiece is a Report by Professor J. Clark Kelso. Professor Kelso was appointed by the Appellate Courts Committee of the Commission on the Future of the California Courts to study the appellate courts; his findings are published here in this Report. The …

Are Rules Really Better Than Standards, Joseph R. Grodin

UC Law Journal

No abstract provided.

Depublication Deflating: The California Supreme Court's Wonderful Law-Making Machine Begins To Self-Destruct, Stephen R. Barnett

UC Law Journal

No abstract provided.

Creating An Appetite For Appellate Reform In California, Gerald F. Uelmen

UC Law Journal

No abstract provided.

Codification And The California Mentality, Lewis Grossman

UC Law Journal

In 1872, California moved to the forefront of American legal reform by becoming one of the first states to codify its complete body of laws. At the time of codification, California was a state whose self-image was characterized by a complex mixture of confidence and insecurity. Californians had grand visions of a bright future due to tlje perceived progression of civilization as it drifted westward. But these visions were clouded by concerns that their state lacked the capacity for order and that California was to remain intellectually and culturally barren.

Mr. Grossman argues that codification satisfied both the insecure and …

The Community Reinvestment Act: A Preliminary Empirical Analysis, Leonard Bierman, Donald R. Fraser, Asghar Zardkoohi

UC Law Journal

The purpose of the Community Reinvestment Act (CRA) is to encourage financial institutions "to help meet the credit needs of the local communities in which they are chartered consistent with the safe and sound operation of such institutions." Recent scholarly criticism of the CRA has argued that the standards it imposes are extremely vague and subjective, frequently force banks to make bad loans, and penalize banks that have conservative lending policies or hold assets in the form of marketable securities.

In their Article, Professors Bierman, Fraser, and Zardkoohi have undertaken a preliminary empirical analysis of the CRA. They have collected …

Avoiding Balancing: The Role Of Exclusionary Reasons In Constitutional Law, Richard H. Pildes

UC Law Journal

Modem constitutional adjudication is often structured as a conflict between individual rights and state interests, which leads courts into the quagmire of balancing. Professor Pildes challenges this dominant modern technique of constitutional interpretation, arguing that, in many cases, balancing is not the best understanding of constitutional reasoning. Rather, constitutional decision making is often a qualitative process, one in which courts define the kinds of reasons for which government may appropriately act in different arenas or spheres.

Borrowing from the philosophy of practical reasoning, Professor Pildes argues that much of constitutional law involves the definition of "exclusionary reasons," which are categorically …

Measuring Constitutionality Transactionally, David L. Faigman

UC Law Journal

In his Article, Professor Faigman argues that the principal complaint about balancing-that rights and government interests are incommensurable and therefore not amenable to balancing- is misplaced. The so-called apples and oranges complaint assumes that the only way to compare liberty and government interests is through a common denominator. Although liberty and government interests are indeed independent factors, he argues, they are not unrelated. Departing from some of his earlier works on "Madisonian Balancing," Professor Faigman proposes a theory of "Constitutional Modeling," in which he describes how the relationship between liberty and government interests can be delineated through a third factor: …

Nature Of The Right To An Abortion: A Commentary On Professor Brownstein's Analysis Of Casey, Robin L. West

UC Law Journal

No abstract provided.

Fake Incommensurability: A Response To Professor Schauer, Jeremy Waldron

UC Law Journal

No abstract provided.

Some Questions About Perfectionist Rationality Review, Vikram David Amar

UC Law Journal

No abstract provided.