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Full-Text Articles in Law
Legal Homophobia And The Christian Church, Ellen M. Barrett
Legal Homophobia And The Christian Church, Ellen M. Barrett
UC Law Journal
This Article analyzes some of the religious roots of legal homophobia in England and on the Continent, notes the interrelationship of religious and secular prohibitions against homosexual activity, and concludes that we will see continued Church involvement in laws concerning homosexual behavior.
Our Straight-Laced Judges: The Legal Position Of Homosexual Persons In The United States, Rhonda R. Rivera
Our Straight-Laced Judges: The Legal Position Of Homosexual Persons In The United States, Rhonda R. Rivera
UC Law Journal
This. survey of the homosexual person's status in American society reveals judicial attitudes towards homosexual individuals through examining cases dealing with most aspects of modem society, from equal employment and family-related issues to the criminalization of homosexual behavior.
Sexual Autonomy And The Constitutional Right To Privacy: A Case Study In Human Rights And The Unwritten Constitution, David A. J. Richards
Sexual Autonomy And The Constitutional Right To Privacy: A Case Study In Human Rights And The Unwritten Constitution, David A. J. Richards
UC Law Journal
The author examines the jurisprudential foundations of the constitutional right of privacy to explain how the idea of human rights justifies the application of such a right of privacy to consenting adult homosexual acts.
European Perspectives: A Foreword, Detlev F. Vagts
European Perspectives: A Foreword, Detlev F. Vagts
UC Law Journal
In his foreword to the European section of the symposium Professor Vagts takes exception to Professor Roth's proposal to vest corporate management in independent trustees. The Article concludes that independent trustees would not adequately represent the interests of the corporation's shareholders and suggests that control is better left within the internal managerial structure of the corporation.
The Evolving Role Of The Director In Corporate Governance, Marshall L. Small
The Evolving Role Of The Director In Corporate Governance, Marshall L. Small
UC Law Journal
This Article addresses the changing role of the corporate director, focusing on the structure, composition, and responsibilities of boards of directors. Three noteworthy trends are examined: the increasing acceptance of the need for nonmanagement directors, the widespread use of board committees as a means of effective decisionmaking, and the increased attention to the due diligence requirement for individual directors. The author contends that these modern trends, while responding to contemporary concerns with corporate accountability, pose at least two fundamental questions. First, for whom should the director-particularly the nonmanagement director-act: the shareholders or society at large? Second, what responsibilities can we …
Evaluating Vertical Mergers Under Section 7 Of The Clayton Act, Lawrence P. Postol
Evaluating Vertical Mergers Under Section 7 Of The Clayton Act, Lawrence P. Postol
UC Law Journal
Analyzing mergers between firms in a customer-supplier relationship under section 7 of the Clayton Act requires identification of anticompetitive effects pertinent to that relationship. This Article examines the chief analytical tools which the courts have developed in this area, providing needed clarification in a complex field and highlighting areas of continuing uncertainty.
Compulsory Licensing Of Musical Compositions For Phonorecords Under The Copyright Act Of 1976, Paul S. Rosenlund
Compulsory Licensing Of Musical Compositions For Phonorecords Under The Copyright Act Of 1976, Paul S. Rosenlund
UC Law Journal
Compulsory licensing is a system by which the copyright owners of most music are required to license their music to others for recording purposes. Under present and prior law, the royalty rate to be paid under compulsory licenses is specified by statute. Although the parties to a license are free to negotiate both the terms and royalty rates of the license, the terms are in fact dictated by the recording industry and the statutory royalty rate is never exceeded. The author analyzes the events that have created this situation and recommends that the statutory royalty rate be greatly increased so …
Mcconnell V. Merrill Lynch, Pierce, Fenner & Smith, Inc.: New Tests For Variable-Interest Loans, Vincent Keith Schubert
Mcconnell V. Merrill Lynch, Pierce, Fenner & Smith, Inc.: New Tests For Variable-Interest Loans, Vincent Keith Schubert
UC Law Journal
In a recent case the California Supreme Court had occasion to consider the effect of the California usury law in the control of a variable interest rate loan involving a non-exempt lender. The failure of the court to properly analyze the question of intent has led to the creation of a new exception to the traditional presumption of intent in usury cases. Dictum in McConnell has potentially increased the plaintiff-borrower's difficulty in proving his case and has created a possibility that the constitutional protection afforded by the usury law has been significantly reduced.
The Choice Between Adjudicating And Rulemaking For Formulating And Implementing Energy Policy, Richard J. Pierce Jr.
The Choice Between Adjudicating And Rulemaking For Formulating And Implementing Energy Policy, Richard J. Pierce Jr.
UC Law Journal
As the magnitude of the energy problem confronting the United States has increased over the last decade, federal regulatory agencies have assumed a greater role in regulating and supervising the energy industry. This Article addresses the advantages and disadvantages associated with the procedures used by federal agencies in both formulating and implementing energy policies. After examining the various procedures used, the author suggests criteria which legislators, agencies, and reviewing courts should consider in selecting procedures for future formulation and implementation of energy policies.
Punitive Damages And The Intoxicated Driver: An Approach To Taylor V. Superior Court, Santiago Fernandez
Punitive Damages And The Intoxicated Driver: An Approach To Taylor V. Superior Court, Santiago Fernandez
UC Law Journal
This Note examines the applicability of punitive damages to California cases involving intoxicated drivers. Particular attention is paid to the concept of malice as required for the allowance of punitive awards under California Civil Code section 3294, and the adoption of an alternative standard for defining malice under the statute is suggested. The Note concludes that as a matter of public policy, and as a means of deterring intoxicated drivers, punitive damages should be allowed when the facts of a case demonstrate a conscious disregard on the part of the defendant for the safety of others.
Parker V. Flook And Computer Program Patents, Paul Haughey
Parker V. Flook And Computer Program Patents, Paul Haughey
UC Law Journal
The United States Supreme Court in Parker v. Flook held that a process comprising primarily a computer program was not proper subject matter for a patent under 35 U.S.C. § 101. The author analyzes the opinion and challenges the Court's reasoning, which confuses statutory subject matter with questions of novelty and obviousness under 35 U.S.C. §§ 102 and 103. The impact of the decision on the future of computer program patents is also discussed.
City-Wide Prohibition Of Billboards: Police Power And The Freedom Of Speech, Sue Diamond Lifschiz
City-Wide Prohibition Of Billboards: Police Power And The Freedom Of Speech, Sue Diamond Lifschiz
UC Law Journal
This March, in Metromedia, Inc. v. City of San Diego, the California Supreme Court upheld San Diego's ordinance that eliminates all off-premise billboards throughout the city. This Note analyzes the constitutional issues involved in the exercise of the local police power to eliminate billboards. These issues include whether the promotion of aesthetic values is a legitimate police power objective; whether total prohibition of a lawful business throughout a community is a violation of due process; whether local ordinances that eliminate billboards without just compensation conflict with state and federal highway beautification statutes; and whether billboard prohibitions are a denial of …
Reborn Federalism In Western Water Law: The New Melones Dam Decision, Roderick Walston
Reborn Federalism In Western Water Law: The New Melones Dam Decision, Roderick Walston
UC Law Journal
The Reclamation Act of 1902 delegated to the states the power to control the use of water developed by federal reclamation projects. In the years following the Act's enactment, however, a series of Supreme Court decisions gradually eroded this state power and culminated in the holding that the federal government has the exclusive right to control water developed by the projects. In the recent case of Caifornia v. United States, the Supreme Court restored a sense of federalism to western water law by reversing its prior decisions and recognizing once again the states' right to control the use of federally-developed …
The Fifth Amendment And The Guilty Plea: An Incompatible Association, Vivian Deborah Wilson
The Fifth Amendment And The Guilty Plea: An Incompatible Association, Vivian Deborah Wilson
UC Law Journal
The author examines the anomaly of a court system which protects the fifth amendment rights of an accused during custodial interrogation, only to sacrifice those rights through accepting a negotiated plea of guilty at trial.
Prior Consistent Statements: Rule 801(D)(1)(B) Of The Federal Rules Of Evidence, Critique And Proposal, Michael H. Graham
Prior Consistent Statements: Rule 801(D)(1)(B) Of The Federal Rules Of Evidence, Critique And Proposal, Michael H. Graham
UC Law Journal
The rules that govern admissibility at trial of a prior consistent statement have developed piecemeal over the past several centuries. At present, these rules are in disarray, with confusion over their construction and application plaguing courts at all levels. This Article examines the concepts that govern this exceedingly complex area, with a view to developing a systematic framework within which to determine the admissibility of prior consistent statements.
Discarding The Doctrine Of Supervisory Domination: New Solutions To An Old Conflict Of Interest, Lynn Cox, Peter Martin Nelson
Discarding The Doctrine Of Supervisory Domination: New Solutions To An Old Conflict Of Interest, Lynn Cox, Peter Martin Nelson
UC Law Journal
The doctrine of supervisory domination evolved from the National Labor Relations Act's specific prohibition against employer domination of unions. Currently, however, employers themselves assert that unions are dominated by supervisors in attempts to defeat the certification of unions as collective bargaining representatives of their employees. The authors of this Note argue that because the doctrine of supervisory domination is meaningful only in relation to employer domination of unions, it should be abandoned, and attention refocused on the doctrine's progenitor - actual supervisory domination. Drawing on existing case law and statutory provisions, the authors introduce proposals designed to protect both employers …
The Treatment Of Sexual Impairment Injuries Under Worker's Compensation Laws, Jack Dittoe
The Treatment Of Sexual Impairment Injuries Under Worker's Compensation Laws, Jack Dittoe
UC Law Journal
Work-related injuries that have the sole effect of permanently impairing employees' ability to engage in sex or beget children rarely cause any loss of earning capacity. Therefore, permanent disability compensation benefits are not awarded. In addition, workers are precluded from maintaining tort suits because the compensation acts provide the exclusive remedy. This Note, with special emphasis on California law, examines the treatment of sexual impairment injuries under workers' compensation laws and analyzes approaches taken by various states. The author discusses possible changes that would ameliorate the harshness of the current scheme and advocates the providing of an additional tort remedy …
Corporate Governance: Who Controls The Large Corporation, Thomas M. Jones
Corporate Governance: Who Controls The Large Corporation, Thomas M. Jones
UC Law Journal
A vital question, preliminary to any discussion of changes in the methods of corporate decisionmaking is: "Who controls the corporation?" This Article explores the theoretical analyses used to determine whether management or shareholders are the ultimate locus of control and discusses what pressures each exerts on the other in order to strengthen their relative positions of power.
Response: The Meaning Of Corporate Social Responsibility Variations On A Theme Of Edwin M. Epstein, Alfred F. Conard
Response: The Meaning Of Corporate Social Responsibility Variations On A Theme Of Edwin M. Epstein, Alfred F. Conard
UC Law Journal
The author discusses four meanings attributed to "corporate social responsibility" by the many people who use the term: (1) regulatory justification meaning, (2) regulatory compliance meaning, (3) regulatory leadership meaning, (4) reallocation meaning.
Response: Some Thoughts On The Director's Evolving Role, Donald E. Schwartz
Response: Some Thoughts On The Director's Evolving Role, Donald E. Schwartz
UC Law Journal
Commenting on Marshall Small's Article, the author agrees that there is a need to develop a corporate framework to resolve the often conflicting claims of investors and others affected by corporate conduct. Professor Schwartz contends that while Professor Small's Article addresses the role of directors in assuring corporate compliance with the law, he neglects to examine other possible alternatives for monitoring the corporation's performance in the broader social spectrum. In this regard, Professor Schwartz advocates greater emphasis on the often-overlooked shareholder aspect of the corporate governance process. This Article concludes that the often overlooked shareholder aspect of the corporate governance …
Social Responsibility In European Company Law, Clive M. Schmitthoff
Social Responsibility In European Company Law, Clive M. Schmitthoff
UC Law Journal
The author examines the history of Western capitalism and suggests that we are moving into an era of regulated capitalism. The change in company law philosophy towards social responsibility is discussed in relation to directors, shareholders, employees, and the public at large. The author concludes that the private sector of industry will be fully maintained although under the auspices of social responsibility and regulation by the state.
Censoring The Law In California: Decertification Revisited, Julie Hayward Biggs
Censoring The Law In California: Decertification Revisited, Julie Hayward Biggs
UC Law Journal
Decertification, or deletion from publication, of appellate opinions by the California Supreme Court is not subject to any rule of court or procedure requiring notice of such requests to litigating or interested parties or groups. The author argues that the continued use of such unsanctioned procedure may have adverse effects on the rights and interests of subsequent litigants or of special interest groups, the doctrine of stare decisis, and the ethical constraints imposed on the judicial system by the adversarial tradition.
Wainwright V. Sykes: The Lower Federal Courts Respond, Saul B. Goodman, Jonathan B. Sallet
Wainwright V. Sykes: The Lower Federal Courts Respond, Saul B. Goodman, Jonathan B. Sallet
UC Law Journal
In 1977, the Supreme Court in Wainwright v. Sykes formulated a "causeand- prejudice" test for determining whether the failure of a state prisoner to raise a federal constitutional claim at trial in accordance with state procedures will foreclose federal habeas review. The Court, however, reserved for future resolution the precise definition of this test. In this Article, the authors examine the lower court decisions in the wake of Sykes that have grappled with the "cause-and-prejudice" test as well as the sources of authority that may help to define the terms. The authors conclude that "prejudice" has been interpreted as a …
The Modern Concept Of Duty: Hoyem V. Manhattan Beach City School District And School District Liability For Injuries To Truants, Matthew A. Hodel
The Modern Concept Of Duty: Hoyem V. Manhattan Beach City School District And School District Liability For Injuries To Truants, Matthew A. Hodel
UC Law Journal
Modern courts have dramatically expanded and simplified the concept of duty in tort law. In the Hoyem decision, the California Supreme Court continued these trends by imposing liability for off-campus injuries to truants. The author examines the case and its position in the mainstream of California negligence law. He argues that the overly flexible nature of duty has, in this instance, led to judicial confrontation of issues best suited to legislative resolution.
Down-Zoning And Exclusionary Zoning In California Law, Michael A. Willemsen, Gail V. Phillips
Down-Zoning And Exclusionary Zoning In California Law, Michael A. Willemsen, Gail V. Phillips
UC Law Journal
As communities attempt to control their growth through regulation of land use, there arises an inevitable conflict between affected property owners and local government. This Article reviews and critically analyzes California cases, statutes and administrative regulations on the subject of community zoning ordinances which diminish the value of property, deprive the owner of any reasonable use of that property, or by limiting available housing, discourage immigration to the community.
Wellenkamp V. Bank Of America: A Victory For The Consumer, David Greenclay Crane
Wellenkamp V. Bank Of America: A Victory For The Consumer, David Greenclay Crane
UC Law Journal
The California Supreme Court's recent decision in Wellenkamp is considered by many to be one of the most significant rulings in the last decade to affect real property. The court effectively removed the due-on-sale clause from residential financing agreements, generating wide approval from consumers and borrowers. This Note argues, however, that the current benefits of Welenkamp will pale in comparison to its unfortunate side effects. The author concludes with a call for legislative intervention to preserve the fixed rate mortgage.
Disqualification Of Corporate Counsel In Derivative Actions: Jacuzzi And The Inadequacy Of Dual Representation, S. Kendall Patton
Disqualification Of Corporate Counsel In Derivative Actions: Jacuzzi And The Inadequacy Of Dual Representation, S. Kendall Patton
UC Law Journal
The author examines the trend in federal courts and in other state jurisdictions disallowing dual representation in shareholder derivative suits. The Note discusses practical and ethical problems involved where the same attorney represents potentially conflicting interests and urges that the California Court of Appeal decision in Jacuzzi v. Jacuzzi Brothers be overruled insofar as it permits the same attorney to represent both the corporation and director and officer defendants in derivative litigation prior to an adjudication that an actual conflict exists.
Administrative Enforcement: An Evaluation Of The Securities And Exchange Commission's Use Of Injunctions And Other Enforcement Methods, Thomas L. Hazen
Administrative Enforcement: An Evaluation Of The Securities And Exchange Commission's Use Of Injunctions And Other Enforcement Methods, Thomas L. Hazen
UC Law Journal
The author evaluates the enforcement mechanisms employed by the Securities and Exchange Commission (SEC) in terms of both legal standards applied to SEC actions and the efficiency of current enforcement efforts. The potential for increasing effectiveness of SEC enforcement through expanded investigatory and adjudicatory powers at the administrative level and through decreased emphasis on injunctive relief is discussed. Finally, the author outlines the anticipated effects of recent developments in the field, including the Supreme Court decision in Parklane Hosiery Co. v. Shore and the approval by the American Law Institute of the proposed Federal Securities Code.
For Troubled Youth--Help, Not Jail, Stephen J. Skuris
For Troubled Youth--Help, Not Jail, Stephen J. Skuris
UC Law Journal
The present juvenile court system has proven ineffective in dealing with "status offenders." This Note examines the history and philosophy of the juvenile court system, the problems attendant to the court's jurisdiction over status offenders, and the trend toward elimination of this jurisdiction. The Note sets forth alternative methods of dealing with status offenders--the institution of voluntary social services and advisory arbitration-to supplant responsibility presently placed in the juvenile court system.
The Effect Of Future Orientation On The American Reformation Of English Judicial Method, James H. Hardisty
The Effect Of Future Orientation On The American Reformation Of English Judicial Method, James H. Hardisty
UC Law Journal
The role undertaken by the American judiciary differs in many respects from the role originally adopted from the English. Using studies from the social sciences, Professor Hardisty finds that many of the dissimilarities are rooted in the differing values held by English and American societies. He examines the ways in which these value dissimilarities are reflected in English and American judicial methods.