Law Commons^™

Report's Draft For The Working Group On Principles To Use When Considering The Federalization Of Criminal Law, Sara Sun Beale

UC Law Journal

No abstract provided.

Fraud-On-The-Market Theory In State Law Securities-Fraud Suits: Mirkin V. Wasserman And An Examination Of Market Reliance Principles In The Common Law Of Deceit, James I. Jaconette

UC Law Journal

In Mirkin v. Wasserman, the California Supreme Court refused to apply the "fraud-on-the-market" theory of market reliance in a securities fraud class action brought under state law. Although this theory had previously been acknowledged under federal securities laws, the Mirkin court claimed that the California law of deceit required proof of actual reliance in all cases. The court also asserted that if it were to recognize this theory, the number of frivolous securities fraud suits would increase because of the availability of punitive damages under state law.

In his Note, the author explains that principles of market reliance (a form …

The Rhetoric Of Torts: How Advocates Help Jurors Think About Causation, Reasonableness, And Responsibility, Neal R. Feigenson

UC Law Journal

How do jurors in accident cases think about negligence, and to what extent do their conceptions conform to the law? This Article examines closing arguments in several accident cases, showing the extent to which advocates appeal to the knowledge structures and inferential heuristics that people use to judge causation and responsibility in everyday life. Through argument structure, point of view, verb tense, metaphor, and other linguistic devices, attorneys construct a rhetoric that combines legal rules with the tools of ordinary judgment. The conceptions of negligence implicit in these arguments occasionally conflict with the law; the Article indicates the cognitive and …

Unconscionability In California: A Need For Restraint And Constistency, Harry G. Prince

UC Law Journal

In California and many other states, courts often engage in the practice of reforming contracts based upon a determination that some part of the bargain was unconscionable. Professor Prince analyzes the unconscionability doctrine as it has been applied in California, particularly in the recent Buchwald v. Paramount Pictures Corp. decision. In Buchwald the court used the unconscionability doctrine to rewrite the motion picture industry contract on behalf of Art Buchwald, a sophisticated party represented by two agents. In evaluating the reasoning underlying Buchwald and other decisions, the author concludes that these cases raise significant doubt about the soundness and consistency …

Software Copyrights As Loan Collateral: Evaluating The Reform Proposals, Patrick R. Barry

UC Law Journal

Software companies rely heavily on intellectual property, particularly copyrights, for loan collateral. For many young firms, copyrights represent their only valuable asset. Two sources of law, the Copyright Act and the Uniform Commercial Code (U.C.C.), both address the perfection of security interests in such collateral. Until recently, lenders frequently filed under both systems to ensure perfection of security interests in copyrights and copyright-related receivables. In In re Peregrine, a federal judge sought to end the uncertainty by holding that the Copyright Act preempts the U.C.C. in such perfection situations.

In his Note, the author summarizes existing criticisms of the Peregrine …

Confronting The Question Of Conscience, Deval Patrick

UC Law Journal

No abstract provided.

A Goal-Based Approach To Drafting Intestacy Provisions For Heirs Other Than Surviving Spouses, Cristy G. Lomenzo

UC Law Journal

The laws of intestate succession affect not only decedents who die without comprehensive and valid wills, but their surviving relatives, the state, and the public at large. Intestacy statutes providing for heirs other than surviving spouses are particularly important because such statutes often dispose of the bulk of an estate.

This Note explores the various legislative goals underlying intestacy statutes, such as satisfying a decedent's presumed intentions or fostering simplicity and uniformity of the statutes. The author concludes that no state legislature has adequately promoted these goals within its intestacy statute for heirs other than the surviving spouse and proposes …

Myths And Principles Of Federalization, Rory K. Little

UC Law Journal

Those who criticize the federalization of crime claim that the trend is causing a docket crisis in the federal courts. Professor Little challenges these criticisms as "federalization myths." He rebuts the claims of a crisis with an empirical analysis of workload levels in the federal courts and a historical analysis of federalization.

In his Article, Professor Little proposes a rebuttable presumption against the federalization of dual jurisdiction criminal conduct and suggests the principle of "demonstrated state failure" to determine when to override that presumption. He outlines how such a principle might operate and concludes that new federal criminal initiatives may …

Reporter's Draft For The Working Group On Principles To Use When Considering The Federalization Of Civil Law, Erwin Chemerinsky

UC Law Journal

No abstract provided.

Economic Theory Applied To Civil Forfeiture: Efficiency And Deterrence Through Reallocation Of External Costs, Catherine Cerna

UC Law Journal

Punishment for drug crimes includes not only penal sanctions, but economic sanctions in the form of property forfeiture as well. Based on broad statutory language, the government appears to seize property in amounts disproportionate to the crime committed. The author contends that forfeiture lacking proportionality risks violating the Eighth Amendment's prohibition of "excessive fines" and distributes wealth in an economically inefficient manner.

The United States Supreme Court mandated an Eighth Amendment proportionality inquiry in civil forfeiture cases in the 1993 case of Austin v. United States. This Note proposes that courts imposing forfeiture abide by this mandate by engaging in …

The Judicial Philosophy Of Roger Traynor, John W. Poulos

UC Law Journal

Roger Traynor served on the Supreme Court of California for nearly thirty years, including more than five years as Chief Justice of California. He is arguably one of the great judges and legal reformers in the history of the common law. This Article, written by the inaugural Roger Traynor Summer Research Professor at Hastings College of the Law, focuses on Justice Traynor's judicial philosophy as found in twenty-four articles that he wrote between 1956 and 1980.

The Article begins with a brief overview of the major developments in American legal process theory, first reviewing traditional views of the judicial process, …

The Antitrust Analysis Of Network Joint Ventures, Thomas A. Piraino Jr.

UC Law Journal

This Article explains the current confusion in the federal courts' antitrust analysis of network joint ventures and proposes a means by which that confusion may be resolved. The courts have been unable to determine effectively the circumstances under which access to essential network joint ventures should be compelled. The Article proposes a new approach by which the judiciary can regulate access to network joint ventures.

Tie proposed approach relies on presumptions and burdens of proof to simplify the courts' analysis. Instead of the complex market power inquiry required by the rule of reason, courts will be able to focus on …

Catellus Development Corporation V. United States: A "Solid" Approach To Cercla "Arranger" Liability, Or A "Waste" Of Natural Resources, Gregory A. Robins

UC Law Journal

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) authorizes and finances the cleanup of inactive hazardous waste sites, imposing cost liability on responsible parties. Since the Act's passage in 1980, courts and commentators alike have criticized the statute as a whole as being poorly drafted. This Note focuses on CERCLA section 107(a)(3), a particularly vague provision that imposes liability on those who arrange for the disposal or treatment of a hazardous substance. Left without a statutory definition of the term "arrange," the federal courts have been unable to develop a coherent standard for determining the scope of "arranger liability." …

Intestate Succession For Stepchildren: California Leads The Way, But Has It Gone Far Enough, Thomas M. Hanson

UC Law Journal

The laws of intestate succession have traditionally precluded stepchildren from sharing in the intestate estate of their stepparents. In 1985 the California legislature rejected this tradition by enacting what is now California Probate Code section 6454, which established intestacy rights for stepchildren who could satisfy certain requirements. California courts of appeal have disagreed on the interpretation of one of the statute's requirements, causing a split that the California Supreme Court has not yet resolved.

This Note begins by summarizing the traditional treatment of stepchildren in the law of intestate succession. Next it analyzes section 6454 and the decisions that have …

The Public Forum Doctrine In The Age Of The Information Superhighway (Where Are The Public Forums On The Information Superhighway?), David J. Goldstone

UC Law Journal

The Information Superhighway, officially called the National Information Infrastructure (NII), exists today only in preliminary stages, and its full scope is impossible to determine. However, it is predicted that the NII will be the basis for dramatic changes to everyday life in the next century. It will open the possibilities for access to enormous amounts of information and for instantaneous communication with people around the world. This new domain, with its emphasis on communication, will lead to new legal insights, especially in the area of constitutional law related to freedom of speech.

In his Article, Mr. Goldstone suggests a thoughtful …

Hiv Home Testing And The Fda: The Case For Regulatory Restraint, Steven R. Salbu

UC Law Journal

Since the late 1980s, the FDA has adopted a de facto ban on human immuno-deficiency (HIV) home-testing kits. This ban has remained FDA policy even though many individuals, including those in high risk groups, have still not been tested for HIV. While pressure from the new Congress may eventually result in a change in FDA policy toward HIV home testing, the FDA presently continues to resist that change.

Professor Salbu argues that the FDA should never have adopted a blanket ban on HIV home-testing kits. He maintains that the ban was the result of speculation of psychological problems that might …

Comment: Congressional Powers And Federal Judicial Burdens, Dennis E. Curtis

UC Law Journal

No abstract provided.

Comment: The Politicalization Of Crime, J. Anthony Kline

UC Law Journal

No abstract provided.

The Federalization Of Oragnized Crime: Advantages Of Federal Prosecution, John C. Jeffries Jr., John Gleeson

UC Law Journal

Discussions about the federalization of crime traditionally have focused on substantive law: a crime will be handled in a state system or in the federal system depending on its definition. While it is true that federal and state crimes appear to have different coverage, federal criminal jurisdiction is fast becoming the rule rather than the exception. It follows that the federalization of crime is increasingly in the hands of federal prosecutors. Thus, informed debate on the respective state and federal roles in law enforcement should focus on the prosecutive function.

In their Article, Professor Jeffries and Judge Gleeson assert that …

Comment: The Folly Of Overfederalization, Sanford H. Kadish

UC Law Journal

No abstract provided.

Federal Criminal Law: The Need, Not For Revised Constitutional Theory Or New Congressional Statutes, But The Exercise Of Responsible Prosecutive Discretion, G. Robert Blakey

UC Law Journal

The state and federal courts largely exercise concurrent jurisdiction over most criminal law matters. Consequently, most discussions of federalization of crime involve the theoretical question of what crimes should or should not be federalized. Professor Blakey argues that an answer to this question can easily be found in the Constitution.

In his Article, Professor Blakey contends that the true focus of the discussion should not be on "federalization." Rather, he maintains, a meaningful evaluation of the federal system of criminal justice should question whether the system is responding to the antisocial behavior that leads to crime. The author believes we …

Mapping The Labyrinth Of Scientific Evidence, David L. Faigman

UC Law Journal

In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court replaced the general acceptance standard of Frye v. United States, used in assessing the admissibility of expert testimony, with the validity standard of Daubert. The Daubert Court directed judges to actively evaluate scientific evidence and placed the initial burden of demonstrating validity of scientific evidence on the proponent of the evidence and the initial responsibility for evaluating that validity on the judge. This directive to judges, who are now expected to become sophisticated consumers of science, raises a number of questions and potential difficulties about the scope of this …

Main Line V. Basinger And The Mixed Motive Manager: Reexamining The Agent's Privilege To Induce Breach Of Contract, Stephen P. Clark

UC Law Journal

In Main Line Pictures, Inc. v. Basinger, a California judge dismissed a tortious inducement claim against the agency that allegedly advised actress Kim Basinger to breach a film contract. The dismissal was based on the "manager's privilege" that applies when an agent motivated by a principal's best interests advises the principal to breach a contract. In the Ninth Circuit and in California, the privilege has been extended to cover an agent who considered the principal's interests, but nevertheless appeared to have acted primarily in the agent's own interest.

In his Note, the author contends that the subtle expansion of the …

Federal Judicial Impeachment: Defining Process Due, Alexa J. Smith

UC Law Journal

The Framers of the Constitution struggled to balance the independence of the federal judiciary with the need for judicial accountability in cases of abuse or incapacity. To ensure judicial independence, the Framers granted federal judges life tenure and protected salaries, and to address judicial accountability, the Framers created the constitutional impeachment process. Congress codified further regulation of the judiciary and the impeachment process with the enactment of the Judicial Councils Act of 1980.

This Note reviews the current impeachment process as applied in the recent controversial impeachments of three federal judges and concludes that the Judicial Councils Act denies accused …

A Salute To Judge William W. Schwarzer, Carl Tobias

UC Law Journal

Upon the completion of Judge William W Schwarzer's half-decade as Director of the Federal Judicial Center, Professor Tobias salutes the distinguished jurist for his leadership in improving the civil and criminal justice systems. Appropriately, the lead Article in this issue focuses on one of the Federal Rules of Civil Procedure that Judge Schwarzer was instrumental in revising.

Greater Representation For California Consumers--Fluid Recovery, Consumer Trust Funds, And Representative Actions, James R. Mccall, Patricia Sturdevant, Laura Kaplan, Gail Hillebrand

UC Law Journal

California statutes provide elaborate protections for consumers from abuse by deceptive, unlawful, and unfair business practices. However, in practice, consumers do not receive optimal protection. Law enforcement agencies often have inadequate resources, and the private bar is hampered by the futility of small individual claims and the complexity and expense of class actions. This Article details early use of the class action procedure in consumer protection litigation and outlines problems with the procedure, such as the expense and impracticality of notice provisions and distributing judgments.

The authors explore the California courts' recent development of procedures for class actions and representative …

The Right Of Publicity: Maturation Of An Independent Right Protecting The Associative Value Of Personality, Sheldon W. Halpern

UC Law Journal

Starting shortly after the emergence of the right of publicity in 1953 and continuing into the mid-1980s, scholarly commentary sought to further define and develop the right. Since then, and particularly in the Ninth Circuit, courts have had many opportunities to interpret the right, and they have redefined it around the concept of "associative value."

Professor Halpern examines the right of publicity as a fully formed, mature construct that now has been largely assimilated into the mainstream of American legal thought. Professor Halpern criticizes recent commentators who, arguing from the standpoint of a more general Critical Legal Studies attack on …

Disclosure Under Federal Rule Of Civil Procedure 26(A)--Much Ado About Nothing, Charles W. Sorenson Jr.

UC Law Journal

Tension between open discovery practice under the Federal Rules of Civil Procedure and the adversarial tradition of the American justice system has existed for decades. Efforts to curb perceived discovery abuse or misuse, in addition to calls for litigation system reform, have resulted in amendments to several Federal Rules. The controversial Rule 26(a), which took effect in December 1993, requires litigants to automatically disclose information on witnesses and documents "relevant to disputed facts alleged with particularity" and potentially revolutionizes traditional discovery practice.

In his Article, Professor Sorenson examines the history of discovery and previous attempts to reform discovery practice. He …

A Dead Man's Tale: Regulating The Right To Bequeath Sperm In California, Lisa M. Burkdall

UC Law Journal

In 1993 California courts considered a case of first impression in America: whether a man has the right to bequeath his sperm for the purpose of reproduction after his death. Hecht v. Superior Court (Kane) established that a man's "decision- making authority" over the use of his sperm for procreation suffices to constitute a property interest under California law. Accordingly, a man may direct the disposition of his frozen semen after his death and that semen may be used to father a child. While Hecht received a warm welcome from men's rights groups and bioethics scholars, criticism focused on the …

Federalization Of Crime: Introduction, Mary Kay Kane

UC Law Journal

No abstract provided.