Law Commons^™

The Experimental Use Exception To Patent Infringement: Do Universities Deserve Special Treatment?, Elizabeth A. Rowe

UC Law Journal

The experimental use exception has recently come under attack by many who consider it too narrow. Much of this discontent with the doctrine has been spurred by a relatively recent Federal Circuit opinion, Madey v. Duke University, which makes clear that a research university does not receive immunity under the experimental use exception when its researchers engage in research or conduct experiments using patented inventions. To determine whether such a narrowing is proper, one must consider the overarching theoretical question about the tradeoff between protecting patentees' rights and maintaining incentives to innovate. In the context of the experimental use exception, …

Keynote Address, Roderick E. Walston

UC Law Journal

No abstract provided.

Ip's Problem Child: Shifting The Paradigms For Software Protection, Jacqueline D. Lipton

UC Law Journal

Computer software is somewhat of a problem child for intellectual property law. Courts and legislatures have struggled to find a balance between encouraging innovation in software development and avoiding undesirable digital information monopolies. Although neither the patent nor the copyright system has provided a particularly satisfactory paradigm for software protection, copyright arguably creates more insidious undercurrents in today's marketplace. If lawmakers do not act expeditiously to stem the tide of copyright protection, the software industry could be facing an intellectual property grab of great proportions which might ultimately impede innovations in software development.

This Article argues for a shifting of …

The Justice Of Recovery: How The State Can Heal The Violence Of Crime, Linda G. Mills

UC Law Journal

A longstanding assumption of the criminal justice system is that victims benefit in some way from the prosecution and punishment of the person who caused them harm. This Article, however, argues that victim healing involves more than punishing the offender, and that by rethinking the roles victims perform in the criminal justice system, we may provide them with a more comprehensive menu of options to facilitate their recovery from crime. The societal goals of punishment and accountability and the individual desire for healing are not mutually exclusive. Incorporating recovery approaches from both the science of victimology and theories of restoration …

Rescuing Dole: Limiting The Intrusion Of The Federal Common Law Of Foreign Relations Into The Foreign Sovereign Immunities Act, Thomas Albright

UC Law Journal

In Dole v. Patrickson, the U.S. Supreme Court determined when a corporation owned by a foreign sovereign is entitled to invoke federal question jurisdiction under the Foreign Sovereign Immunities Act. Following Dole, a foreign government must directly own a majority of the shares of a corporation for that corporation to qualify as an instrumentality of the foreign government and thus be entitled to access the federal courts. However, the federal common law of foreign relations, earlier recognized by the Supreme Court in Banco Nacionale v. Sabbatino but never defined, undermines Dole's holding. As interpreted by the circuit courts, the federal …

Beyond Moody: A Re-Examination Of Unreasonably Small Capital, Lee B. Shepard

UC Law Journal

Fraudulent conveyance laws may end up back in the spotlight as the economy slows following a period of sharply increased leveraged buyout activity and aggressive lending tactics. Since participants in leveraged transactions are more sophisticated than in the past, plaintiffs may focus on unreasonably small capital, rather than insolvency, to show that a debtor engaged in a constructively fraudulent conveyance or transfer. Unfortunately, unreasonably small capital is an underdeveloped legal concept, particularly with regard to standards by which courts can determine whether a transaction left a debtor with unreasonably small capital.

The leading case on the subject, Moody v. Security …

Reconceptualizing Due Process In Juvenile Justice: Contributions From Law And Social Science, Mark R. Fondacaro, Christopher Slobogin, Tricia Cross

UC Law Journal

This Article challenges the accepted wisdom, at least since the Supreme Court's decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. The Court's reliance on due process means that the central goal in juvenile justice is fundamental fairness, which does not have …

Introduction And Dedication, Brian Gray

UC Law Journal

No abstract provided.

Lawful To The World: Protecting The Integrity Of The Inevitable Discovery Doctrine, Jason Liljestrom

UC Law Journal

In the 1984 case of Nix v. Williams, the Supreme Court adopted the inevitable discovery exception to the exclusionary rule, which admits illegally-obtained evidence if the prosecution can establish that the evidence would have been discovered by lawful means. Despite ongoing criticism and divided application of the nuances of the inevitable discovery doctrine, the requirement that the hypothetical independent source be "lawful" is one element that appears straightforward. Nevertheless, a pair of recent cases involving multiple parties has created yet another inter-circuit conflict, and has thrust the lawful means requirement to the forefront of the inevitable discovery debate.

The First …

Mitigation And The Capital Defendant Who Wants To Die: A Study In The Rhetoric Of Autonomy And The Hidden Discourse Of Collective Responsibility, Daniel R. Williams

UC Law Journal

Two powerful adjudicatory ideals-preserving individual autonomy and promoting systemic reliability-collide most dramatically in cases where capital defendants join the prosecution in seeking a death verdict. Capital defendants do this by "waiving" the presentation of all mitigation evidence and affirmatively urging the jury to sentence them to death. This supposed expression of autonomy (presumably not unlike other constitutional waivers) impedes the sovereign's constitutional mandate to pursue reliable capital sentencing. Does autonomy trump reliability? This Article examines the mitigation-waiver conundrum in a way never done before, and by doing so, aspires to illuminate how the rhetoric of autonomy suppresses destabilizing notions such …

The Measure Of A Justice: Justice Scalia And The Faltering Of The Property Rights Movement Within The Supreme Court, Richard J. Lazarus

UC Law Journal

The ability of a Supreme Court Justice to craft a majority opinion is the most important and least understood of the skills that distinguish between ordinary and truly extraordinary jurists. The Justice who is able to do so is the one most likely to produce Court opinions that, because of their persuasive force, promote the kind of public respect ultimately necessary for the Court's authority. The publication of the papers of Justice Harry Blackmun (The Blackmun Papers) in 2004 allows an assessment of Justice Antonin Scalia's effectiveness in crafting Supreme Court precedent in the protection of property rights. The Papers …

California's Punitive Damages Law: Continuing To Punish And Deter Despite State Farm V. Campbell, Kathleen S. Kizer

UC Law Journal

In State Farm v. Campbell, the U.S. Supreme Court held that the punitive damages awarded in a particular case must be proportional to the amount of compensatory damages awarded in that case. Although the Court refrained from setting a "bright-line ratio," many courts reviewing awards after State Farm have time and again reduced punitive damages awards, using factors between four and nine in reliance on proclamations made by the Court in State Farm. In addition, State Farm casts doubt on whether a defendant's financial condition is relevant to the issue of punitive damages. Both of these assertions-that punitive damages must …

Unfolding Discovery Issues That Plague Sexual Harassment Suits, Katie M. Patton

UC Law Journal

Federal Rule of Evidence 412 was broadened in 1994 to include protections for sexual harassment victims seeking to file suit against the harasser from unnecessary, intrusive and invasive probing into their past sexual history. The presumption in Rule 412 is that a sexual harassment victim's sexual history and propensities are inadmissible. As Rule 412 is an evidentiary rule, many questions still remain as to what protections a sexual harassment victim should be afforded during the discovery process. Just how far does Rule 412 go?

This Note explores several different discovery aspects that plague sexual harassment suits as a result of …

Delinquent Or Disabled? Harmonizing The Idea Definition Of "Emotional Disturbance" With The Educational Needs Of Incarcerated Youth, Moira O'Neill

UC Law Journal

Congress enacted the Individuals with Disabilities Education Act (IDEA) to meet the special education needs of disabled youth. Yet the Department of Education regulations defining "emotional disturbance," one of the qualifying disabilities under the IDEA, have consistently defined the term to exclude youth diagnosed as "socially maladjusted." Special education scholars and professionals have long criticized this definition of emotional disturbance as imprecise and inconsistent with mental health constructs of emotional and behavioral disorders. Incarcerated youth are particularly affected by this definition of "emotional disturbance," as they demonstrate a higher prevalence of special educational needs than does the public school population. …

Waste Discharge Requirements: Beyond The Point Source, Hastings Law Journal

UC Law Journal

Recent amendments to the Porter-Cologne Water Quality Act withdraw the general waiver for agricultural discharge. Discharges from agricultural lands include irrigation return flow, flows from tile drains, and storm water runoff. Historically, most regional boards regulated these discharges, but recent legislation now requires regional boards to review and renew their waivers or replace them with waste discharge requirements. This Panel of experts discussed the impact of these modified waiver requirements as well as their appropriateness and efficacy in ameliorating waste discharge issues.

Private Sector Participation In Water Services: Through The Lens Of Stockton, Hastings Law Journal

UC Law Journal

The mere suggestion of private sector involvement in municipal water services generates acrimonious debate from virtually all sectors of society. So why did Stockton, California attempt "privatize" to its water services in the face of such opposition? Was the government "captured" by "water barons"? Or was the government making a smart business decision?

This Panel discussed the controversial issue of private sector participation in the water services sector, often deemed "privatization" by those who oppose it, through the example of the aborted agreement between OMI/Thames and the City of the Stockton. In so doing, the Panel addressed the larger policy …

Environmental Justice: Access To Clean Drinking Water, Hastings Law Journal

UC Law Journal

Many low-income communities and communities of color are unable to advocate for clean drinking water or oppose rate hikes for drinkable water. Failing infrastructure, industrial pollution, and increasing water scarcity in California disproportionately affect vulnerable, marginalized communities. This Panel focused on community organization and novel legal approaches (such as Title VI Civil Rights complaints) that could be used to advocate for clean drinking water.

The Problem Of Social Cost In A Genetically Modified Age, Paul J. Heald, James Charles Smith

UC Law Journal

Genetically modified pollen drifting onto the field of a neighboring farm may cause substantial harm. If the bystanding farmer is growing non-genetically modified crops, she may suffer a pecuniary loss due to genetic "pollution." If the pollen is patented, the patentee may also claim harm stemming from the unauthorized distribution of its proprietary genetic material. Disputes arising from pollen drift present classic legal questions arising under the law of neighbors and classic economic questions broached most famously by Ronald Coase in his essay, The Problem of Social Cost. The application of the Coase Theorem and its most applicable corollary strongly …

The Export-Import Dilemma: Inventions And Employment Abroad, Catherine Tornabene

UC Law Journal

The United States Court of Appeals for the Federal Circuit has recently interpreted the breadth of 35 U.S.C. §§ 271(f) and (g) in a series of important cases. While § 271(f) has been interpreted broadly, § 271(g) has been interpreted narrowly, creating a legal quandary in which companies are effectively rewarded by U.S. patent law for moving their production abroad. This is contrary to the original protectionist goals of both statutes.

This Note examines the history and original goals of both statutes and recent divergent interpretations of the statutes by the Federal Circuit. It then examines the impact of such …

Champagne, Feta, And Bourbon: The Spirited Debate About Geographical Indications, Justin Hughes

UC Law Journal

Geographical Indications (GIs) are terms for foodstuffs that are associated with certain geographical areas. The law of GIs is currently in a state of flux. Legal protection for GIs mandated in the TRIPS Agreement is implemented through appellations law in France and through certification mark systems in the United States and Canada. This Article first examines the state of GIs throughout the world. The author then turns to the continuing debate between the European Union and other industrialized economies over this unique form of intellectual property. The European Union claims that increasing GI protection would aid developing countries, but, in …

Ignoring The Supreme Court: State V. White, The Civil Commitment Of Sexually Violent Predators, And Majoritarian Judicial Pressures, Eric W. Buetzow

UC Law Journal

In Kansas v. Hendricks, the Supreme Court upheld the constitutionality of state statutes that allow for the civil commitment of "sexually violent predators" after completion of their criminal sentences. But the Court in Hendricks left uncertain the precise requirements demanded by substantive due process in this context. Specifically, questions remained regarding whether, and to what degree, a defendant must suffer from volitional inability for the commitment to pass constitutional muster. The Supreme Court responded five years later in Kansas v. Crane, where it held that "there must be proof of serious difficulty in controlling behavior." This could have been considered …

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

UC Law Journal

The last decade has seen remarkable progress in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, which have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be reexamined. Although studies in this area are preliminary, they have not yet satisfied the foundational requirements …

Reconstructing Family Privacy, Suzanne A. Kim

UC Law Journal

Feminist legal theorists have long debated the proper role of privacy in women's lives. They have generally discredited the formalist division of society into "public" and "private" spheres to the extent that this model has historically permitted male abuse of women under the mantle of "domestic privacy." Indeed, the critique of the public-private dichotomy has been a central concern of feminist legal theory and the domestic violence movement. The critique has given rise to disputes among feminist legal scholars, however, about the utility and desirability of asserting women's rights claims on privacy grounds. While radical feminists reject privacy-based claims because …

Expedited Removal: Suggestions For Reform In Light Of The United States Commission On International Religious Freedom Report And The Real Id Act, Simona Agnolucci

UC Law Journal

Undocumented persons enter the United States every day. Even though many of them seek asylum, under a law passed by Congress in 1996, ninety-nine percent of undocumented persons are returned to their home countries through "Expedited Removal." Those who enter the United States are detained, often under horrible conditions and sometimes for years. When they finally appear before an immigration judge, many are denied entry because of alleged inconsistencies between their testimony before the judge and statements they originally made at the point of entry, even though their testimony and prior statements are often consistent.

This Note examines the practice …

The Mirage Of Equivalence And The Ethereal Principles Of Parallelism And Horizontal Equity, Jeffrey H. Kahn

UC Law Journal

Many commentators, as well as the general public, believe that "fairness" should be a primary concern of the tax law. Often, this desired fairness takes the form of horizontal equity, demonstrated through the concept of parallelism (i.e., equal treatment of similar items). And, clearly, parallelism must be taken into account in evaluating many provisions of the tax code. To take it into account, however, does not mean that it must prevail over all other legitimate goals of the tax system with which it is often in conflict. Such analysis has led the author to conclude that not only is parallel …

Hale's Legacy: Why Private Property Is Not A Synonym For Liberty, Ilana Waxman

UC Law Journal

For anyone interested in critiquing the laissez-faire view of regulation as an illegitimate intrusion on the rights of property owners, it is particularly important to understand the historical fate of progressive critiques during the Lochner era. One such critique came from Robert Hale, a progressive law professor and economist of the 1920s-1940s who has proved to be one of the most enduring of the Lochner-era critics. Although Hale's critique of private property and the free market fell into obscurity after his retirement in 1949, it was revived in the 1970s, and has been the subject of considerable scholarly interest for …

The Right To Counsel In Criminal Cases, A National Crisis, Mary Sue Backus, Paul Marcus

UC Law Journal

Two years ago, on the fortieth anniversary of Gideon v. Wainwright, the Constitution Project and the National Legal Aid & Defender Association formed a partnership-funded by several organizations -to consider the way in which the Sixth Amendment right to counsel actually functions in criminal cases throughout the United States. The concept was to create a truly national committee with participants from every relevant sector of the criminal justice system, which would conduct research throughout our country, advise our fellow citizens on the matter, and construct recommendations for reform. The authors serve as Reporters to the Committee.

The national research took …

Welfare To What?, Noah Zatz

UC Law Journal

Ten years ago, President Clinton fulfilled his campaign pledge to end "welfare as we know it" by signing sweeping federal welfare reform legislation. The replacement of Aid to Families with Dependent Children (AFDC) with Temporary Assistance for Needy Families (TANF) marked an important transformation in the character of the American welfare state. Work provided the core of the much-touted public policy consensus underlying this transformation, one that simultaneously restricted and expanded the availability of government transfers to low-income Americans. While tough new TANF work requirements cut back on welfare for those who did not work, those who did work but …

The Rebirth Of Morrissey: Towards A Coherent Theory Of Due Process For Prisoners And Parolees, Sharif A. Jacob

UC Law Journal

The Supreme Court's due process jurisprudence has variously relied on two inconsistent theories of due process. Until the 1970s, the Supreme Court located liberty interests in the power of the state. In 1972, the Supreme Court issued Morrissey v. Brewer, a landmark decision that instead located liberty interests in the natural condition of man. Morrissey expanded due process protections for prisoners and outlined a coherent standard by which due process claims could be adjudicated. However, over the next two decades, the Supreme Court retreated from this standard of due process, circumscribing the protections Morrissey afforded.

This Note demonstrates that recent …

Hetch Hetchy: To Drain Or Not To Drain, Hastings Law Journal

UC Law Journal

Can California afford to lose a major reservoir, even if it restores a jewel of Yosemite Valley? The California Department of Water Resources is scheduled to release a report (requested by Governor Schwarzenegger) on the feasibility of draining the Hetch Hetchy Reservoir and restoring the valley that John Muir referred to as "one of natures rarest and most precious mountain temples." Proponents and opponents disagree over the cost of dam removal and valley restoration. This Panel of experts discussed and debated the numerous issues related to this matter.