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Full-Text Articles in Law
Whaling In Circles: The Makahs, The International Whaling Commission, And Aboriginal Subsistence Whaling, Monder Khoury
Whaling In Circles: The Makahs, The International Whaling Commission, And Aboriginal Subsistence Whaling, Monder Khoury
UC Law Journal
In Anderson v. Evans, the Ninth Circuit held that the International Whaling Commission (“IWC”) Schedule’s approval of a quota to hunt whales for the Native American Makah Tribe (“Makahs”) violated the Marine Mammal Protection Act. The implications of this holding were troubling: despite the U.S. government and the IWC approving, on domestic and international levels, the Makahs’ whaling proposal in the 1990s, the Makahs were still unable to hunt whales legally. The Makahs’ right to whale stemmed from the 1855 Neah Bay Treaty, an agreement between the Makahs and the U.S. government in which the government promised the Makahs the …
Disruptive Innovation: New Models Of Legal Practice, Joan C. Williams, Aaron Platt, Jessica Lee
Disruptive Innovation: New Models Of Legal Practice, Joan C. Williams, Aaron Platt, Jessica Lee
UC Law Journal
For decades, lawyers have been complaining that they hate working at law firms, and clients have expressed increasing frustration with high legal fees. But complaining is as far as either group went, until recently. This is perhaps the first attempt at a comprehensive review of a wide variety of new business organizations that have arisen in recent years to remedy the market’s failure to deliver business organizations responsive to the complaints of either lawyers or of clients. The “New Models of Legal Practice” described here typically offer a new value proposition for lawyers and clients. For lawyers, New Models offer …
Databasing Delinquency, Kevin Lapp
Databasing Delinquency, Kevin Lapp
UC Law Journal
Technological advances in recent decades have enabled an unprecedented level of surveillance by the government and permitted law enforcement to gather, store, and retrieve in real time enormous amounts of data. After nearly a century of limited record-making and enhanced confidentiality regarding juveniles, these data collection practices have quickly expanded to include youth. This Article uncovers the vast extent of modern data collection and distribution about juveniles by the criminal justice system from juvenile sex offender registration and their inclusion in gang and DNA databases, to schools turned into mandated law enforcement informants, to police and courts increasingly sharing juvenile …
A Message From The Editor-In-Chief, Lesley Rae Hamilton
A Message From The Editor-In-Chief, Lesley Rae Hamilton
UC Law Journal
It is a dynamic time for the legal profession. Law firms, big and small, are innovating the way they run their businesses and deliver their services, resulting in positive changes for both clients and attorneys. On the one hand, firms are increasingly placing emphasis on delivering value to clients at a faster rate and for lower fees than ever before through adjustments to the types of services they offer and the manner in which they deliver them. Lawyers, also, are benefitting as legal employers increasingly offer innovative approaches to schedule flexibility, discretionary billing rates, and attorney entrepreneurialism to appeal to …
Resurrecting Health Care Rate Regulation, Erin C. Fuse Brown
Resurrecting Health Care Rate Regulation, Erin C. Fuse Brown
UC Law Journal
Our excess health care spending in the United States is driven largely by our high health care prices. Our prices are so high because they are undisciplined by market forces, in a health care system rife with market failures, which include information asymmetries, noncompetitive levels of provider market concentration, moral hazard created by health insurance, multiple principal-agent relationships with misaligned incentives, and externalities from unwarranted price variation and discrimination. These health care market failures invite a regulatory solution. An array of legal and policy solutions are typically advanced to control our health care prices and spending, including: (1) market solutions …
Overcoming The Public-Private Divide In Privacy Analogies, Victoria Schwartz
Overcoming The Public-Private Divide In Privacy Analogies, Victoria Schwartz
UC Law Journal
When a photographer takes unauthorized aerial photographs of a company’s plant, the legal framework under which courts evaluate the case, as well as its likely outcome, depends on whether the photographer was hired by a private actor or the government. If a competitor hired the photographer, the aerial photography may constitute improper trade secret misappropriation. If, however, the government hired the photographer, the aerial photography would not violate the Fourth Amendment. This dichotomy illustrates a public-private divide in which privacy violations by the government are treated differently from privacy violations by the private sector. Despite this divide, some courts have …
The Problem Of Reverse Payments In The Pharmaceutical Industry Following Actavis, Traci Aoki
The Problem Of Reverse Payments In The Pharmaceutical Industry Following Actavis, Traci Aoki
UC Law Journal
Reverse payments are payments that are made as a component of a patent infringement settlement, between a brand-name pharmaceutical company to a competitor who is attempting to market a generic version of the patented brand-name drug. The patentee not only drops its patent infringement suit against the generic manufacturer, but also compensates this alleged infringer. Reverse payment settlements raise antitrust concerns because they suggest that the generic manufacturer could have proved the brand-name’s patent either invalid or non-infringed, and thus entered the marketplace to provide consumers with lower priced generic drugs, if they had continued with the litigation. This also …
A Message From The Editor-In-Chief, Emily Goldberg Knox
A Message From The Editor-In-Chief, Emily Goldberg Knox
UC Law Journal
Sixty-six years after the founding of the Hastings Law Journal, much has changed. The times of physically turning a page are all but gone. Now we prefer the swipe of a finger or the click of a mouse. It is a challenge for long-standing institutions to keep up with the times. Inertia is powerful—it is far easier to watch things change than change with the times. Nevertheless, this year, Hastings Law Journal met the challenge head on. In addition to overhauling our website, we launched SCOCABlog, a blog dedicated to covering the Supreme Court of California. Launching a blog, I …
Federal Sentencing In The States: Some Thoughts On Federal Grants And State Imprisonment, John F. Pfaff
Federal Sentencing In The States: Some Thoughts On Federal Grants And State Imprisonment, John F. Pfaff
UC Law Journal
As the movement to reduce the outsized scale of U.S. incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly ninety percent of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control. In this Article, I examine one way in which the federal government might be driving up state incarceration rates, and thus one way it can …
Constitutional Law, Moral Judgment, And The Supreme Court As Super-Legislature, Brian Leiter
Constitutional Law, Moral Judgment, And The Supreme Court As Super-Legislature, Brian Leiter
UC Law Journal
I propose to defend and explore three claims in this Essay. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the Supreme Court. There, the Court operates as a kind of super-legislature, albeit one with limited jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues that are brought before it; and second, the Court is constrained, to some extent, by its past decisions and by constitutional and legislative texts. The problem, however, is that those constraints underdetermine …
Unmasking Mullane: Due Process, Common Trust Funds, And The Class Action Wars, John Leubsdorf
Unmasking Mullane: Due Process, Common Trust Funds, And The Class Action Wars, John Leubsdorf
UC Law Journal
Although Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) is a classic Civil Procedure case, its history has never before been written. This Article reveals that history, traced among other sources, in the papers of New York’s Governor Herbert Lehman, whose misgivings did not prevent his signing the legislation that the Supreme Court struck down, and of Justice Robert Jackson, who wrote the opinion striking it down. More or less behind the scenes, two struggles were going on. One involved and prefigured all of the tensions of the modern class action: conflicts within the class, the …
Keynote Address: Federal Sentencing Reform Ten Years After United States V. Booker, Charles R. Breyer Hon.
Keynote Address: Federal Sentencing Reform Ten Years After United States V. Booker, Charles R. Breyer Hon.
UC Law Journal
Hon. Charles R. Breyer gave the keynote address for Hastings Law Journal’s Federal Sentencing Reform Symposium held on February 13, 2015. Professor Rory Little provided the introduction.
Merit-Based Sentencing Reductions: Moving Forward On Specifics, And Some Critique Of The New Model Penal Code, Rory K. Little
Merit-Based Sentencing Reductions: Moving Forward On Specifics, And Some Critique Of The New Model Penal Code, Rory K. Little
UC Law Journal
In the Essay that follows, Michael Santos tells a remarkable story. Arrested at age twenty-three, Santos served twenty-six years in the federal prison system. While in prison, Santos published articles and books, and earned college and master’s degrees, despite what he describes as affirmatively obstructionist decisions by “corrections” personnel. Immediately after his release in 2013, Santos began lecturing at a respected state university. Today, he has a website; course materials for persons facing lengthy prison sentences; scores of supporters and mentors; and the charisma and character to hold a law symposium audience spellbound for every minute of his thirty-minute presentation. …
Incentivizing Excellence: A Suggestion For Merit-Based Reductions From A Twenty-Six-Year Federal Prison Insider, Michael Santos
Incentivizing Excellence: A Suggestion For Merit-Based Reductions From A Twenty-Six-Year Federal Prison Insider, Michael Santos
UC Law Journal
America’s prison population has soared since the early 1970s, when a commitment to mass incarceration began. We now incarcerate more people than any other nation. Further, recidivism rates show that the longer we expose people to “corrections,” the less likely those people become to emerge as law-abiding, contributing citizens. As Justice Kennedy has said, our nation incarcerates far too many people, and they serve sentences that are far too long. We can improve the outcomes of our nation’s prison system by incentivizing a pursuit of excellence, creating mechanisms through which people in prison can earn freedom in gradually increasing levels …
A Response To Professor Brian Leiter, Joseph R. Grodin
A Response To Professor Brian Leiter, Joseph R. Grodin
UC Law Journal
The editors of Hastings Law Journal have invited me to comment on Professor Brian Leiter’s provocative essay, Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature, and I have undertaken to do so, not so much because I disagree with what he says—in fact, I agree with much of his thesis—but because what he says points to questions which deserve further consideration. . .
New York City Rules! Regulatory Models For Environmental And Public Health, Jason J. Czarnezki
New York City Rules! Regulatory Models For Environmental And Public Health, Jason J. Czarnezki
UC Law Journal
Scholars have become increasingly interested in facilitating improvement in environmental and public health at the local level. Over the last few years, former New York City Mayor Michael Bloomberg and the New York City Council have proposed and adopted numerous environmental and public health initiatives, providing a useful case study for analyzing the development and success (or failure) of various regulatory tools, and offering larger lessons about regulation that can be extrapolated to other substantive areas. This Article, first, seeks to categorize and evaluate these “New York Rules,” creating a new taxonomy to understand different types of regulation. These “New …
In And Out—Contract Doctrines In Action, Danielle Kie Hart
In And Out—Contract Doctrines In Action, Danielle Kie Hart
UC Law Journal
This Article was written to test a hypothesis, namely, that it is easy to get into a contract but very difficult to get out of one. After reviewing case law from the Seventh and Ninth Circuits, contract law in action suggests that reality may be slightly different from theory. That is, the data from the cases show that it may not be so easy to get into a contract in practice, but it is extremely difficult to get out of one. Pacta sunt servanda seems to be alive and well in twenty-first century contract law. Perhaps the more significant finding …
Appealing To Reason-Able Expectations Of Privacy: Increasing Appellate Review Under Ecpa, Andrew Tyler Ohlert
Appealing To Reason-Able Expectations Of Privacy: Increasing Appellate Review Under Ecpa, Andrew Tyler Ohlert
UC Law Journal
The Snowden revelations of 2013 sparked widespread, public discussion about the amount of government surveillance performed on American citizens under the Foreign Intelligence Surveillance Act. This dialogue often sidesteps the Electronic Communications Privacy Act, however, which is the primary statute that governs the government’s ability to obtain the electronic communications of everyday citizens. The vast majority of requests for information under ECPA are pursued ex parte, and often without notice to a targeted individual that the government has obtained her information. This secrecy regime leaves targeted individuals unable to oppose the government or appeal adverse decisions. Moreover, if a magistrate …
Piercing The Privacy Veil: Toward A Saner Balancing Of Privacy And Health In Cases Of Severe Mental Illness, Jorgio Castro
Piercing The Privacy Veil: Toward A Saner Balancing Of Privacy And Health In Cases Of Severe Mental Illness, Jorgio Castro
UC Law Journal
On November 19, 2013, Virginia state senator and former candidate for governor Robert Creigh Deeds suffered a high-profile attack from his son, who had been diagnosed with schizophrenia, resulting in permanent injuries to himself and his son’s self-inflicted death. On June 16, 2015, Senator Deeds addressed Congress to highlight one of the biggest challenges to providing adequate intervention and support for his son—the HIPAA Privacy Rule’s restriction on the release of protected health information to family caretakers. Senator Deeds’s high-profile story emerged as a national indication of a serious problem: the immense difficulty experienced by families trying to obtain critical …
Marriage As Black Citizenship?, R. A. Lenhardt
Marriage As Black Citizenship?, R. A. Lenhardt
UC Law Journal
The narrative of black marriage as citizenship enhancing has been pervasive in American history. As we mark the fiftieth anniversary of the Moynihan Report and prepare to celebrate the 150th anniversary of Thirteenth Amendment, this Article argues that this narrative is one that we should resist. The complete story of marriage is one that involves racial subordination and caste. Even as the Supreme Court stands to extend marriage rights to LGBT couples, the Article maintains that we should embrace nonmarriage as a legitimate frame for black loving relationships—gay or straight. Nonmarriage might do just as much, if not more, to …
Consumption By Destination: The Practical Aspects Of Adopting The Destination Principle, Gerald A. Byrnes
Consumption By Destination: The Practical Aspects Of Adopting The Destination Principle, Gerald A. Byrnes
UC Law Journal
Corporate tax reform has been a “hot button” tax issue for numerous years now. The complex and inefficient double taxation model has proven to be particularly ill equipped to properly tax large multinational entities. One popular idea to solve these concerns is to switch to a consumption tax. However, there are still questions about how to model said tax, particularly in the international context: should a country tax be based on where products are destined for, or on where they originate? This Note focuses on the practical appeal of preferring the destination principle to the origin principle, should the United …
Capital Accounts: Bank Capital, Crises, And The Determinants Of An Optimal Regulatory Approach, John Crawford
Capital Accounts: Bank Capital, Crises, And The Determinants Of An Optimal Regulatory Approach, John Crawford
UC Law Journal
Suppose a woman named Kate wants to start a bank. She has $5 of her own and knows a creditworthy entrepreneur (Will) who needs a $100 loan for a new project. She also knows lots of people who would happily deposit their savings with her. Should regulators permit Kate’s bank to borrow (from depositors) the extra $95 she needs to lend to Will? Or should it require her to borrow less and put up more of her own money before extending the loan? How much does it matter to financial stability? Two superb accounts of the 2007–2008 financial crisis and …
I Hear America Suing: Music Copyright Infringement In The Era Of Electronic Sound, Charles Cronin
I Hear America Suing: Music Copyright Infringement In The Era Of Electronic Sound, Charles Cronin
UC Law Journal
Twentieth-century developments in audio recording, copying, and broadcast technologies thoroughly altered not only how popular music is distributed and consumed, but also how it is created. By the 1960s, sound recording technologies had become so refined, ubiquitous, and economically accessible that they—and no longer music notation—had become the primary means by which popular songs were created and documented. Audio technologies democratized authorship of popular music, but also led to the gradual lessening of original primary musical parameters (melody in particular) in many popular genres. Paradoxically, despite this general diminishment in original musical expression, the number of music infringement claims has …
Constitutional Constraints On Punitive Damages: Clarity, Consistency, And The Outlier Dilemma, Laura J. Hines, N. William Hines
Constitutional Constraints On Punitive Damages: Clarity, Consistency, And The Outlier Dilemma, Laura J. Hines, N. William Hines
UC Law Journal
Almost twenty years ago, the Supreme Court in BMW v. Gore invoked the Due Process Clause for the first time to invalidate a punitive damages award as excessive. Since then, the Court has issued a handful of decisions that further refine Gore’s tripartite guidepost framework. In this Article, we draw on a ten-year span of reported state and federal punitive damages decisions in an attempt to evaluate how lower courts have understood and implemented this constitutionalization of punitive damages law. Ours is not a normative analysis about whether the Court should or should not have federalized punitive damages. Rather, we …
Revoking Rights, Craig J. Konnoth
Revoking Rights, Craig J. Konnoth
UC Law Journal
In important areas of law, such as the vested rights doctrine, and in several important cases—including those involving the continued validity of same-sex marriages and the Affordable Care Act—courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …
Keeping The News Domestic: Why A Toxic Environment For The American Press And Ready Access To Foreign Media Organizations Like Wikileaks Compel The Rapid Adoption Of A Federal Reporters’ Privilege, Ryan C. Stevens
UC Law Journal
In 2008, the U.S. Department of Justice subpoenaed James Risen, a Pulitzer Prize winning New York Times journalist, to testify against one of his confidential sources in a criminal proceeding against that source. After Risen fought the subpoena and it expired in 2009, the Justice Department renewed it in 2010. The saga that followed brought a mass of media attention to the debate over the idea of a testimonial privilege for news reporters. While debates over the reporters’ privilege have raged since the Supreme Court first denied the privilege in 1972, this Note examines the overlooked effect that WikiLeaks has …
Disabled But Unqualified: The Essential Functions Requirement As A Proxy For The Ideal Worker Norm, Michael Edward Olsen Jr.
Disabled But Unqualified: The Essential Functions Requirement As A Proxy For The Ideal Worker Norm, Michael Edward Olsen Jr.
UC Law Journal
Over the course of nearly two decades, courts have narrowed the employment protections of the Americans with Disabilities Act of 1990 by interpreting the term “disabled” so narrowly that virtually no person qualified for the Act’s protections. Moreover, if a person was sufficiently “disabled,” they were often so severely disabled that they could not work at all; thus, they were not “qualified individuals” who could perform the essential functions of the job. In response, Congress passed the Americans with Disabilities Act Amendments Act of 2008 to give broad coverage to persons with disabilities. Courts have followed this mandate by interpreting …
The Duty Of Good Faith: A Perspective On Contemporary Contract Law, Jay M. Feinman
The Duty Of Good Faith: A Perspective On Contemporary Contract Law, Jay M. Feinman
UC Law Journal
A duty of good faith performance inheres in every contract. Many courts get the contours and application of the duty of good faith wrong. These courts’ restrictive approach ties the good faith duty too closely to the express terms of the contract, requires subjective bad faith to violate the duty, and narrowly defines the standards of conduct that good faith requires. This Article, presented at a symposium in honor of Charles Knapp, describes the senses in which the courts get good faith wrong: doctrinal, historical, structural, and political/ideological. In doing so, it applies the critical legal studies approach to the …
Is There A “Duty To Read”?, Charles L. Knapp
Is There A “Duty To Read”?, Charles L. Knapp
UC Law Journal
The notion that there is in general contract law a “duty to read” persists in the decisions of American courts. This Article explores the general question of what it may mean to say that there is a “duty to read,” and concludes by suggesting what role (if any) that doctrine should play in our present-day law of contract. The Article begins by examining various ways in which the “duty to read” is commonly articulated, and compares it to other contract law concepts: the “duty to bargain in good faith” and the “duty to mitigate damages.” The Article next considers a …
Under The Sun: Casebooks And The Future Of Contracts Teaching, Thomas W. Joo
Under The Sun: Casebooks And The Future Of Contracts Teaching, Thomas W. Joo
UC Law Journal
What is the future of the casebook in legal education? It is tempting and fashionable to blame the current woes of law schools on their supposedly “outdated” educational practices, such as casebooks. As this Article shows, however, most of the current criticisms of casebooks and the case method are perennial ones. This does not render the critiques invalid, but it does undermine the notion that they reveal a contemporary crisis in legal education. Indeed, they are not even specific to legal education. Rather, they reflect fundamental tensions in the learning of any field: theory versus practice, general understanding versus specific …