Law Commons^™

The Play's The Thing: A Theory Of Taxing Virtual Worlds, Bryan T. Camp

UC Law Journal

This Article looks at the potential tax issues arising from a new life activity: online role-playing games in virtual worlds. Currently, some thirty million people regularly play such games and the number is growing. Exploring the reach of the Tax Code into virtual world transactions not only responds to the potentially practical needs of millions of U.S. taxpayers, it also permits a reevaluation of core principles of income tax as they interplay with life activities in the context of twenty-first century American culture.

This Article's central thesis is that while player activity in virtual worlds undoubtedly produces measurable economic value …

Of Elephants And Embryos: A Proposed Framework For Legal Personhood, Jessica Berg

UC Law Journal

What is a person? What responsibilities or obligations do we have to entities that we recognize as persons under the law? These are not simply theoretical questions. Questions of legal personhood have already faced courts and legislatures and are likely to become more relevant as technology advances.

Legal personhood has largely been ignored outside of the corporate context. Yet there is a pressing need to answer the question of what constitutes a person. This Article's focus is on legal status and the ways in which the law should recognize rights and interests of certain entities.

There are two bases for …

A Loophole To Repair: "Repair And Maintenance" As A Way Around The Coastal Act's Prohibition Against Seawalls, Jenni Khuu

UC Law Journal

Seawalls and other shoreline protective devices alter natural shoreline conditions and result in dramatic beach loss. For this reason, the California Coastal Act of 1976 promulgated a series of prohibitions and requirements, forbidding coastal development that would require shoreline protection. On January 15, 2004, the California Coastal Commission approved commercial and residential development of promontories. The area, a landslide complex, cannot naturally sustain development. The existing seawall in its current state cannot support proposed development either. Nevertheless, the Coastal Commission approved the project, along with a new seawall to stabilize it. How did the proposal get past the Coastal Act's …

Letting Katz Out Of The Bag: Cognitive Freedom And Fourth Amendment Fidelity, Christian M. Halliburton

UC Law Journal

What would life be like if it became impossible to keep a secret? We may find out with the advent of a new technology called "Brain Fingerprinting" and other technologies that allow access to our very thoughts. This Article first discusses the advent of technology like Brain Fingerprinting and its kin, and their impact on cognitive autonomy. The Article then posits the question, what would the Constitution have to say about evidentiary inquiries into the mind through the use of such technology? The author argues that current Fourth Amendment jurisprudence, including Katz v. United States, is inadequate to address such …

Incentive And Expectation In Copyright, Sara K. Stadler

UC Law Journal

In this Article, the author reveals a fundamental flaw in how courts and scholars have come to reason about copyright law. Creators expect to be rewarded for engaging in the labor of creation, and one of those rewards is the bundle of exclusive rights known as "copyright." Congress uses copyright law to give creators the rewards they expect, so as to safeguard their incentives to create. But what if creators expect too much? Must Congress use copyright law to satisfy those expectations, thus preserving what creators claim to require as "incentive?" To date, everyone has assumed that the answer is …

Lawful Peacekeeping: Applicability Of International Humanitarian Law To United Nations Peacekeeping Operations, Jaume Saura

UC Law Journal

The deployment and operation of United Nations peacekeeping missions has been rightly considered one of the most successful initiatives in the history of the organization. In 1988, UN peacekeeping forces were awarded the Nobel Peace Prize for their contribution to reducing tensions and ending hostilities.

Although the "blue helmets" were not originally envisaged in the Charter of the United Nations, they have brought peace and stability to numerous cases of domestic and international armed conflict.

Notwithstanding the overall success of peacekeeping operations, recent violations of the laws of war by UN peacekeeping forces raise the question of the duty of …

Blakely's Silver Lining; Sentencing Guidelines, Judicial Discretion, And Crime, Joanna Shepherd

UC Law Journal

The Supreme Court's recent decisions in United States v. Booker and Blakely v. Washington, invalidating mandatory criminal sentencing guidelines, could have the unexpected benefit of reducing crime. This Article is the first to use regression analysis to explore the relationship between sentencing guidelines and crime. It shows that adoption of guidelines is associated with significant increases in crime, contrary to the expectations of many of the original supporters of sentencing guidelines.

After developing several economic theories about the relationship between guidelines and crime, the author investigates this relationship empirically using a large, state-level data set. The analysis shows that guidelines …

When Silence Means Everything: The Application Of Proposition 64 To Pending Actions, Gavin L. Charlston

UC Law Journal

Prior to November 3, 2004, one of the most expansive unfair competition laws in the country was on the books in California. Unlike most states, where plaintiffs are barred from bringing unfair competition claims unless they have suffered an injury-infact (or barred altogether from bringing such an action), in California any individual could bring an action where the defendant had engaged in a broad class of violations known as "unfair business practices." On November 2, 2004, the California electorate voted to end that practice by enacting Proposition 64. Now private plaintiffs must not only prove that they have suffered an …

The Consumer Class Action Bill Of Rights: A Policy And Political Mistake, Laurens Walker

UC Law Journal

This Article discusses the significance of the Consumer Class Action Bill of Rights, found in section 3 of the 2005 Class Action Fairness Act. The author argues that this section is the most significant provision of the law. In addition to expounding upon the notice provision of the Bill of Rights Section, the Article explores the possible responses that public officials could make. Additionally, the author predicts a strong degree of public participation in class action settlements, especially by the Attorneys General of the states. The Article also considers the Act's substantive regulation of settlement terms, including ''coupon settlements," as …

Principles For Resolving Conflicts Between Trade Secrets And The First Amendment, Pamela Samuelson

UC Law Journal

Trade secret defendants sometimes raise First Amendment defenses to trade secret misappropriation claims. Some commentators believe that the First Amendment defenses should never be given credence in trade secret cases because trade secrets are property rights and there is no First Amendment right to violate property rights, a theory which the California Supreme Court arguably adopted in DVD Copy Control Association v. Bunner. Other commentators assert that preliminary injunctions in informational trade secret cases should be considered prior restraints on speech, which bear a heavy presumption of unconstitutionality.

This Article asserts that preliminary injunctions in ordinary trade secret cases generally …

Informal Closing Of The Bypass: Minors' Petitions To Bypass Parental Consent For Abortion In An Age Of Increasing Judicial Refusals, Lauren Treadwell

UC Law Journal

The presence of an effective judicial bypass mechanism for minors seeking an abortion is fundamental to the validity of parental consent statutes. Following the United States Supreme Court's decision in Bellotti v. Baird H, states now have the flexibility to restrict minors' access to abortion by requiring parental consent for the procedure, provided an effective judicial bypass mechanism exists to handle situations where the minor does not want to involve her parents. Under Bellotti II, the minor must have the opportunity to petition the court for a waiver of the relevant parental consent law, which if granted, would allow her …

Creative Judicial Misunderstanding: Misapplication Of The Public Trust Doctrine In Michigan, Carl Shadi Paganelli

UC Law Journal

A candid but rational inquiry into the history of the public trust doctrine is essential to understanding a recent Michigan Supreme Court decision that suddenly and unexpectedly took private property for public use without just compensation.

Despite the Latinate allure of its terms-jus publicum and jus privatum-the public trust doctrine has no Roman law origins. It is a creature of the common law. It arose in England to explain the Crown's rights to tidelands and navigable waters. It followed English dominion across the Atlantic, where the fertile imagination of American lawyers unearthed the doctrine's supposed ancient Roman roots.

This Note …

The Politics Of Deference And Inclusion: Toward A Uniform Framework For The Analysis Of Fundamental Alteration Under The Ada, Kerri Lynn Stone

UC Law Journal

This Article discusses a number of federal court opinions which have dealt with the "fundamental alteration" query, posed by Titles II and III of the Americans with Disabilities Act, in the five years after the Supreme Court decision in PGA Tour, Inc. v. Martin. The author identifies problems inherent in the approach taken in Martin and discusses the Court's lack of clear guidance on the issue. She then sets forth a proposed framework and suggested considerations for courts undertaking the fundamental alteration query. The Article declares that only after establishing such a framework may a court distinguish between compelling a …

Initiative Funding Through Targeted Taxes: Proposition 63, Mental Health, And The Crossroads Of Direct Democracy, Andrew M. Holmes

UC Law Journal

It took over forty-one years, but on November 2, 2004, President John F. Kennedy's vision of mental health care became a reality in California when 53.8% of the voters of California ratified Proposition 63. Proposition 63 (the Proposition) was criticized, however, the proponents of sought to bring relief to California's mental health system after decades of broken promises. The controversy surrounding Proposition 63 is not whether treatment for the mentally ill is a priority of the State but whether the novel funding structure is abusive.

The Note will first trace the roots of the controversy through a historical analysis of …

Rethinking The Application Of Ada Precedent To Feha Disability Discrimination Cases, Gabriel N. White

UC Law Journal

This Note addresses the practice in California state courts of applying federal precedent from cases under the ADA to resolve questions of statutory interpretation in state cases under FEHA. The author argues that this practice risks error because of the significant differences between California state disability law and federal disability law.

The discussion takes as its starting point two recent California appellate cases. In the first, Gelfo v. Lockheed Martin Corp., the California Court of Appeal addressed a matter of first impression under state law, but which had split the federal circuits. The author questions the Gelfo court's method of …

A Prescription For California's Ailing Inmate Treatment System: An Independent Corrections Ombudsman, Arthur L. Alarcon

UC Law Journal

California's prison system is totally broken and in urgent need of reform on many fronts. Over the past twenty-five years, California's inmate population has grown over 500%, the number of institutions has nearly tripled, and prison litigation costs have escalated tremendously. In 2004, California Governor Arnold Schwarzenegger convened the Corrections Independent Review Panel to assess issues affecting the prison system. The Panel presented a number of possible solutions to the problems faced by California's prisons, but sweeping new reforms are still needed if the entire system is to be overhauled effectively and brought into compliance with constitutional requirements.

Among the …

Family Conflicts: The Role Of Religion In Refusing Medical Treatment For Minors, Jennifer E. Chen

UC Law Journal

Traditionally, minors are subject to their parents' will when it comes to their own healthcare treatment. While most parents make decisions consistent with societal values that they should obtain the best medical treatment available when their child is critically ill, cases exist where parents have refused medical treatment for their child because of their religious beliefs. Based on constitutional rights, parents have some leeway to make these treatment refusal decisions, and in no published case to date has a child asserted a treatment preference contrary to that of his or parents refusing treatment on religious grounds. Thus, courts have yet …

The Transformation Of Statutes Into Constitutional Law: How Early Post Office Policy Shaped Modern First Amendment Doctrine, Anuj C. Desai

UC Law Journal

New communication technologies often have been accompanied by utopian dreams of a society unencumbered by ignorance, inequality, and poverty. However, the American Post Office-a medium of communication that, like the Internet, developed through a substantial amount of governmental policy-served as a very real vehicle for a transformation in American constitutional law. Early American policymakers gave the Post Office specific attributes that helped established the Post Office as a "First Amendment institution," an institution whose role judges recognized as furthering First Amendment values in unique ways.

Regulating Land Use In A Constitution Shadow: The Institutional Contexts Of Exactions, Mark Fenster

UC Law Journal

In a refreshingly clear and comprehensive decision, the Supreme Court explained in Lingle v. Chevron that the Takings Clause requires compensation only for the effects of a regulation on an individual's property rights. Under the substantive due process doctrine, by contrast, courts engage in a differential inquiry into both a regulation's validity and the means by which the regulation attempts to meet the government's objective. Lingle's explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission and Dolan v. City of Tigard, two regulatory takings decisions that reviewed "exactions," regulatory conditions placed on …

An Oracle Without Foresight - Plaintiffs' Arduous Burdens Under U.S. V. Oracle, Amanda J. Parkison Hassid

UC Law Journal

The decision in United States v. Oracle Corp. has the potential to obliterate the government's ability to successfully block certain mergers. The unique set of circumstances in Oracle created little binding precedent on Judge Vaughn Walker, who did not shy away from using this freedom. The court set forth requirements for the government that differed drastically from those proposed in Merger Guidelines promulgated by the Federal Trade Commission and the Department of Justice -requirements that effectively .increased the burden of proof for the government. In addition, the Oracle court disregarded volumes of the government's evidence, requesting instead evidence that would …

Philosopher Kings And International Tax: A New Approach To Tax Havens, Tax Flight, And International Tax Cooperation, Steven A. Dean

UC Law Journal

Tax flight (the evasion of income taxes through the use of offshore tax havens) poses a $5o billion-a-year problem for the United States. Through tax flight treaties, the United States could make payments to tax havens that would give those countries both the resources and the incentive they need to develop the administrative capacity necessary to supply the U.S. with income tax information. Such treaties likely would reduce the United States' collective well-being, particularly if measured in simple GDP terms. Therefore, a simplistic "philosopher king" model of international tax law, which assumes that governments only engage in cross-border tax cooperation …

Informed Consent: Requiring Doctors To Disclose Off-Label Prescriptions And Conflicts Of Interest, Margaret Z. Johns

UC Law Journal

The doctrine of informed consent should be expanded to require doctors to disclose: (i) off-label prescriptions; and (2) conflicts of interest created by drug-company marketing. Off-label prescriptions are those which do not comply with the FDAapproved use for the drug. While they are perfectly legal and a significant part of mainstream medicine, accounting for more than half of all prescriptions written today, in many instances they are not supported by scientific evidence, drive up the cost of health care, and expose patients to unnecessary risks. Conflicts of interest arise because drug companies provide free continuing medical education, pay speakers' and …

The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin

UC Law Journal

The law of patent claim interpretation articulated by the United States Court of Appeals for the Federal Circuit is commonly supposed to be markedly indeterminate, and to be responsible for a lack of certainty and predictability in patent litigation. But there has been no attempt to measure objectively the indeterminacy associated with patent claim interpretation, or, for that matter, of any other field of law. This Article shows that under appropriate conditions the indeterminacy of a legal regime may be measured empirically by the frequency of appellate dissents. Application of this method to the Federal Circuit's jurisprudence demonstrates that while …

Duress: A Perplexing Barrier To Relief From Joint And Several Liability, M. Meghan Kerns

UC Law Journal

The majority of married taxpayers do not fully appreciate the legal ramifications of executing a joint tax return. Regardless of the actual division of combined income, upon filing a joint return, each spouse is responsible for the accuracy of the entire return and liable for the full amount of any tax deficiency arising from the return. To avoid joint and several liability, a couple could file separate returns; however, this often results in a greater total tax liability. Alternatively, a spouse who qualifies as "innocent" of the erroneous items reported by his or her spouse may claim relief under Internal …

Sharing The Short Bus: Eligibility And Identity Under The Idea, Wendy F. Hensel

UC Law Journal

This Article examines the issue of eligibility under the Individuals with Disabilities Education Act ("IDEA"), that is, what kind of disability a child must have to qualify for protection and services under the statute. The author explores whether the current legislative approach to disability and eligibility enhances the integration and advancement of children with impairments or reinforces the stigma of difference and inequality. Part I of the Article examines the legislative evolution of eligibility since the passage of the statute, then known as the Education for All Handicapped Children Act, in 1975. This Part also explores the legal and social …

Beyond Disability Civil Rights, Michael Ashley Stein, Penelope J. S. Stein

UC Law Journal

This Article examines the history of disability law in the United States and the future of disability rights domestically and globally. The author describes the origins, moral salience, and limitations of the current social model of disability rights, and advocates for a human rights-based approach to disability rights. Specifically, the author notes the social model's laudable achievement in promulgating the Americans with Disabilities Act of 199o (ADA). Further, the author emphasizes the positive effects of the ADA on disability rights legislation internationally. However, this Article also presents the weaknesses of the current social model; the author suggests that due to …

Generalized Grievances And Judicial Discretion, Mark Gabel

UC Law Journal

Few scholars have questioned the common assumption that the generalized grievances doctrine is simply a prohibition on obtaining federal court standing based on one's status as a taxpayer or a citizen. This Note attempts to show that the current doctrine is actually somewhat broader than that, although the Supreme Court has refused to define its outer limits precisely.

This Note traces the history of the generalized grievances principle from its origins in the 1920s to today, arguing that the concept was not originally intended to be a stand-alone limitation on federal court standing. Rather, it was simply a facet of …

Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas

UC Law Journal

This Article challenges the Supreme Court's justification for embracing a strict proportionality standard in evaluating the proper measure of remedies, arguing that it is a subjective standard of review created by an activist Court rather than the objective standard its proponents claim.

Part I of the Article explains the theory of strict proportionality, whereby reviewing courts engage in what the author describes as a Three Bears theory of redress. Part II charts the evolution of remedial proportionality, tracing its development as applied to punitive damages and injunctions, while considering the role of the legislature in creating "congruent and proportional" remedies …

Authentically Innocent: Juries And Federal Regulatory Crimes, Jeffrey A. Meyer

UC Law Journal

Few ideals reign more supreme than the jury as conscience of our community and moral arbiter of a criminal defendant's conduct. These ideals are no more than myth for most federal criminal cases today. For a wide range of the most commonly charged federal crimes, judges routinely instruct juries to convict defendants regardless of their moral culpability. This issue arises with regulatory or public order crimes, which include drug trafficking, weapons, immigration, and environmental offenses. They are usually general intent crimes, defined by Congress without identifying precisely what the prosecution must prove a defendant knew or intended. General intent crimes …

Default Production Of Electronically Stored Information Under The Federal Rules Of Civil Procedure: The Requirements Of Rule 34(B), Vlad J. Kroll

UC Law Journal

This Note explains what parties have to do to meet the requirements for default production of electronic discovery under Rule 34(b) of the Federal Rules of Civil Procedure. Specifically, the author analyzes the meanings of "ordinarily maintained" and "reasonably usable" as used in Rule 34(b). After laying out the background of electronic discovery under the Federal Rules, the author interprets the rule's requirements for default production. First, the author analyzes the rule's language to determine its plain meaning. Then, the author examines the rule's position in the overall scheme of the Federal Rules. Finally, the author examines the rule's drafting …