Law Commons^™

Transsexuals And Critical Gender Theory: The Possibility Of A Restroom Labeled Other, Terry S. Kogan

UC Law Journal

No abstract provided.

What Is A Property-Related Fee?: An Interpretation Of California's Proposition 218, John S. Throckmorton

UC Law Journal

In 1996, the voters of California passed Proposition 218, the most recent in a series of initiatives, beginning with Proposition 13 in 1978, aimed at curtailing taxation by local governments. Like its predecessors, Proposition 218 contains ambiguous language and will likely be the subject of future litigation. This Note argues for an interpretation of Proposition 218 consistent with the intent behind the initiative to provide relief to California taxpayers.

In this Note, the author provides an overview of the history of taxpayer initiatives in California and the context out of which they arose. He then analyzes the disparate ways in …

After-Wards, Daphne Scholinski

UC Law Journal

No abstract provided.

Queer Margins, Queer Ethics: A Call To Account For Race And Ethnicity In The Law, Theory, And Politics Of "Sexual Orientation", Francisco Valdes

UC Law Journal

No abstract provided.

Allowing Sentence Bargains To Fall Outside Of The Guidelines Without Valid Departures: It Is Time For The Commission To Act, John M. Dick

UC Law Journal

This Note studies the effects that the 1984 Sentencing Reform Act and the Federal Sentencing Guidelines have had on the practice of plea bargaining. In particular, the Note examines how the practice of sentence bargaining has been affected.

The Guidelines state that Rule 11(e) of the Federal Rules of Criminal Procedure continues to govern the acceptance or rejection of plea agreements. On its face, Rule 11 (e) appears to give federal courts the absolute power to accept or reject plea bargain agreements that provide for specific prison sentences. However, the Guidelines also set forth general policy statements concerning the acceptance …

Parental Rights And The Right To Intimate Association, David Fisher

UC Law Journal

In a series of cases in the 1920s, the Supreme Court affirmed a fundamental right of parents to direct the upbringing and education of their children. Since that time, however, the judiciary's support for parental rights has become much more ambiguous. As a result, in recent years, the religious right has taken parental rights on as one of its central policy issues - introducing bills and state constitutional amendments in twenty-eight states as well as a bill in Congress, all designed to strengthen the hand of parents against state assertion of authority on behalf of their children.

This Note traces …

Asymmetric Rewards: Why Class Actions (May) Settle For Too Little, Bruce L. Hay

UC Law Journal

As the class action device is used with increasing frequency in damages actions, there is an increasing risk that class counsel may settle the claims of the class members for too little, or for less than their expected value at trial. One task of the courts is to protect against this danger, and this includes the policing of the "reasonableness" of the class counsel's fee in settlement. In doing so, however, Professor Hay argues that courts tend to ask the wrong question: they focus on the counsel's "take" from the settlement in absolute terms, rather than focusing on his "take" …

Avoiding The Tragedy Of Frankenstein: The Application Of The Right Of Publicity To The Use Of Digitally Reproduced Actors In Film, Erin Giacoppo

UC Law Journal

Technology now exists which will allow computer artists to digitally replicate living actors and digitally resurrect deceased actors. California's right of publicity statute, California Civil Code section 3344, arguably protects a living actor from replication in a commercial or film without his consent. Although California's post mortem right of publicity statute, California Civil Code section 990, prohibits the use of a digitally resurrected actor in an advertisement without the permission of the actor's estate, section 990 is inadequate to protect a deceased actor from unauthorized use in a film. Because unauthorized digital resurrection presents an opportunity for abuse, the author …

Opportunistic Downsizing Of Aging Workers: The 1990'S Version Of Age And Pension Discrimination In Employment, Gary Minda

UC Law Journal

In the last decade, "downsizings," or strategic mass layoffs, have swept corporate America. In order to obtain a more desirable short-term costs-to-income ratio for their quarterly reports, corporations large and small have liberally cut their work forces. This trend has dramatically shaken the traditional de facto work relationship contract between employers and long-term employees. Employees can no longer count on stable work relationships with their employers, nor can they be secure in receiving promised pension benefits after many years of work.

None have been more affected by this business strategy than older workers. Corporations tend to "downsize" older employees because …

Providing Equal Access To Equal Justice: A Statistical Study Of Non-Prisoner Pro Se Litigation In The United States District Court For The Northern District Of California In San Francisco, Spencer G. Park

UC Law Journal

The recent growth in pro se litigation in the federal courts has prompted many questions as to how to respond to this trend. This study seeks to provide a statistical basis for answers to those questions. Based upon a sample drawn from pro se cases filed in the U.S. District Court for the Northern District of California in San Francisco, this Note examines various aspects of pro se litigation including the types of claims filed by pro se litigants, whether or not pro se litigants request counsel, how pro se claims are disposed, and the relative burden of pro se …

To Hire Or Not To Hire: What Silicon Valley Companies Should Know About Hiring Competitors' Employees, Hanna Bui-Eve

UC Law Journal

The Silicon Valley is one of the most important moneygenerating regions of America. Its phenomenal success is the result of a unique regional network-based industrial system which operates as a kind of meta-organization. Engineers move frequently between firms and projects, taking the knowledge, skills, and experience acquired at previous jobs and using them as building blocks in their new jobs. California courts have contributed to Silicon Valley's success by allowing workers easy mobility among jobs and by restricting employers' attempts to restrain employees from relocating. As a result, most employers have come to accept a high turnover rate as a …

Applying A Strict Discovery Rule To Art Stolen In The Past, Tarquin Preziosi

UC Law Journal

There is a great deal of un-recovered stolen art, and a great deal of confusion within and among jurisdictions as to when the applicable statute of limitations for stolen art begins to run. Holistic legal reform in this area is long overdue. Recent proposals, responding to current practices in the art world, call for the adoption of an art theft registry to help effectuate the return of stolen art and provide efficiency in the marketplace. However, a great number of objects fall outside the effective scope of these proposals: art that was stolen in the past, and those artworks which …

State Environmental Standard-Setting: Is There A "Race" And Is It "To The Bottom"?, Kirsten H. Engel

UC Law Journal

Federal intervention in environmental standard-setting is often justified as necessary to prevent states from engaging in a welfare-reducing "race-to-the-bottom" spurred by interstate competition for industry. Traditionally, scholars base the "race-to-the-bottom" assumption upon game theoretic models such as the classic Prisoner's Dilemma. Applying a neoclassical economic approach, however, some legal scholars have recently argued that interstate competition is conducive to efficiency and thus that there is no "race-to-the-bottom." In this Article, Professor Engel points out that these arguments have little empirical basis and provides, for the first time in the legal literature, an empirical framework for determining which of the existing …

Branding Neutral Explanations Pretextual Under Batson V. Kentucky: An Examination Of The Role Of The Trial Judge In Jury Selection, Tracy M. Y. Choy

UC Law Journal

The Supreme Court's adoption in Batson v. Kentucky of Title VII's three-step, burden-shifting procedure to determine whether an attorney impermissibly exercised a race-based peremptory challenge has been criticized for failing to give trial courts adequate guidance regarding the burdens of the parties at each step. Courts have required relatively low showings to meet the first and second steps of the Batson inquiry: the prima facie case of intentional discrimination and the neutral explanation steps, respectively. Thus, Batson's third and final step, the trial court's determination as to proof of purposeful discrimination, is too important to lack guidelines.

This Note will …

The Origin Of The Appeal In America, Mary Sarah Bilder

UC Law Journal

The appeal has been treated by academics as a mere legal procedure, possessing no particular significance. Indeed, for many years, legal scholars accepted the influential arguments of Professors Julius Goebel and Roscoe Pound that the appearance of the appeal in early American courts arose either from confusion about English common law legal procedures or was the result of colonial adaptation of English justice-of-the-peace practices. Professor Bilder challenges this conventional explanation of the origin of the appeal by locating the early American colonists within a transatlantic Western European legal culture.

Professor Bilder's Article draws on recent work in cultural history to …

Appellate Review Of Scientific Evidence Under Daubert And Joiner, David L. Faigman

UC Law Journal

In what he describes as a "premortem" on Joiner v. General Electric Co., a case before the Supreme Court at the time he is writing, Professor Faigman considers what role appellate courts should have in the evaluation of the admissibility of scientific expert testimony. Unclouded by the conclusions of the Court, Professor Faigman argues that appellate courts should share the active gatekeeping role that the Court created for district courts in Daubert v. Merrell Dow Pharmaceuticals, Inc.

Professor Faigman describes the lower courts' opinions in Joiner, noting that the Eleventh Circuit adopted a somewhat murky heightened standard of appellate review …

In Communities Begin Responsibilities: Obligations At The Gay Bar, William B. Rubenstein

UC Law Journal

No abstract provided.

Unlocking The Closet Door: Protecting Children From Involuntary Civil Commitment Because Of Their Sexual Orientation, Miye A. Goishi

UC Law Journal

No abstract provided.

Jeffrey Dahmer And The Cosynthesis Of Categories, Peter Kwan

UC Law Journal

No abstract provided.

The Meaning Of Romer V. Evans, Matthew Coles

UC Law Journal

No abstract provided.

Defending Genders: Sex And Gender Non-Conformity In The Civil Rights Strategies Of Sexual Minorities, Paisley Currah

UC Law Journal

No abstract provided.

Horizontal Jurisprudence And Sex Discrimination, Jean Wegman Burns

UC Law Journal

In this Article, Professor Bums contrasts the vertical jurisprudential style of Title VII with the horizontal approaches found in other, unrelated areas of the law. She argues that Title VII's vertical, top-down development and testing are largely responsible for the law's failure to produce more concrete results or to settle the often acrimonious arguments on the subject of gender equality in the workplace. She advocates supplementing Title VII's onesize- fits-all set of rules with a bottom-up, horizontal approach to rulemaking and rule testing. This will allow those directly affected by the rules to participate in their development and encourage different …

Equal Protection After Romer V. Evans: Implications For The Defense Of Marriage Act And Other Laws, Kevin H. Lewis

UC Law Journal

Recent national events have forced the American public to discuss a subject once considered unthinkable-same-sex marriage. In 1996, the Hawaii Supreme Court decided Baehr v. Lewin, potentially paving the way to allow same-sex couples the right to legally marry in the state of Hawaii. In response to this possibility, Congress passed and the President signed the Defense of Marriage Act, which defines marriage in the U.S. Code in such a way as to deny federal recognition to these couples, and also grants the states the right to refuse to recognize same-sex marriages performed in Hawaii. Addressing a totally different issue, …

Federal Civil Rights Practice In The 1990'S: The Dichotomy Between Reality And Theory, Julie Davies

UC Law Journal

Civil rights fee-shifting statutes were designed to enable plaintiffs to attract competent attorneys to litigate and ultimately vindicate violations of federal civil rights laws. In the years following the enactment of the Attorneys' Fees Awards Act of 1976, the Supreme Court has decided a number of cases that would seem to affect attorney compensation in civil rights cases. In a series of interviews with civil rights practitioners, Professor Julie Davies has explored the effects of some key decisions as well as other factors that influence the viability of civil rights practice. In her Article, she presents the results of her …

On A Quest For Reason: A New Look At Surreptitious Search Warrants, Paul V. Konovalov

UC Law Journal

Surreptitious search warrants, which authorize investigating agents to enter one's property and observe the interior without seizing any evidence or providing notice to the owner or occupant of the searched property, have recently been the subject of increased attention by the courts. During the last decade, both the Ninth Circuit and the Second Circuit have upheld as constitutional the use of surreptitious search warrants where agents have provided post-search notice to the targets of the search. The two Circuits have fundamentally disagreed, however, about the underlying legal justification for the notice requirement. In particular, the Ninth Circuit has explained that …

Healer-Patient Privilege: Extending The Physician-Patient Privilege To Alternative Health Practitioners In California, Betty F. Lay

UC Law Journal

As the nature of healthcare in the United States evolves to include alternative therapies, it is reasonable to ask whether patients who seek medical treatment from alternative health practitioners are entitled to invoke the same testimonial privilege as that accorded to patients who seek treatment from conventional medical doctors.

In her Note, the author explores the merits of applying the physician-patient privilege to the alternative healthcare setting. The analysis also considers alternative legal schemes for preserving the confidentiality of patients' communications, such as the existence of voluntary ethical codes of conduct and the state constitutional right to privacy. The author …

The Hazards Of Tinkering With The Common Law Of Future Interests: The California Experience, Laura E. Cunningham

UC Law Journal

The common law of future interests has long held that remainder interests are transmissible, unless a trust instrument expressly provides otherwise. This means that if a remainder beneficiary fails to survive until the time her interest becomes possessory, the remainder will pass under the terms of the deceased beneficiary's will (or to her heirs if she dies intestate). This constructional preference for vested remainders is considered preferable to the alternative: returning the remainder to the estate of the creator of the trust. Yet the probate and federal estate tax consequences of construing remainders as vested can in some cases be …

Identifying The Role Of Social Norms In Mediation: A Multiple Model Approach, Ellen A. Waldman

UC Law Journal

Mediation plays an ever-increasing role in a variety of dispute contexts. Once primarily limited to labor or neighborhood conflicts, the mediation process is currently being used to resolve environmental, personal injury, securities, and bioethics disputes. This movement into new areas has sparked modifications and innovations in traditional mediation practice. In this Article, Professor Waldman argues that changes in mediation practice require a revamping of mediation theory. She argues that mediation encompasses three separate, but related, procedural models that can be distinguished by their divergent treatment of social norms. She terms these models "norm-generating," "norm-educating," and "normadvocating."

In the norm-generating model, …

Plain Meaning, The Tax Code, And Doctrinal Incoherence, Mary L. Heen

UC Law Journal

This Article examines the Supreme Court's interpretive approach in recent tax cases. Although the Supreme Court increasingly has applied a "plain meaning" approach in statutory construction cases, the Court does not consistently follow any one approach to statutory interpretation. Professor Heen argues that the Court's inconsistency leads to doctrinal incoherence, as illustrated by three recent tax decisions in which the Court used different interpretive approaches in construing the same statutory provision. Even if the plain meaning approach were more consistently applied as a decision-making procedure in tax cases, misinterpretations of the tax code would result from the inherent limitations of …

Changing Courts In Changing Times: The Need For A Fresh Look At How Courts Are Run, Judith S. Kaye

UC Law Journal

In this lecture from the Mathew 0. Tobriner Lecture Series at Hastings College of the Law, Chief Judge Judith S. Kaye urges a broader conception of court administration. She presents 'three concrete solutions to today's court administration problem. One is in the area of criminal justice, the second the family courts, and the third the jury system-three areas of court operations that touch large numbers of citizens. She describes these solutions with the hope that the legal and academic communities, as well as the public, will start to evaluate the efficiency of court administration, because the public deserves and demands …