Law Commons^™

Note – The Un-Creation Of Rights: An Argument Against Administrative Disclaimers, Josephine K. Mason

UC Law Journal

Boilerplate disclaimers appear with some frequency in administrative regulations, yet there has been a striking absence of discussion as to their validity. This Note argues that administrative disclaimers threaten two key constitutional concerns inherent in administrative law—proper government structure and fairness to individuals—and that courts should therefore approach administrative disclaimers with a high degree of skepticism.

Reframing Antitrust In Light Of Scientific Revolution: Accounting For Transaction Costs In Rule Of Reason Analysis, Alan J. Meese

UC Law Journal

This Article contends that modern rule of reason analysis, informed by workable competition’s partial equilibrium trade-off paradigm, is suitable for evaluating only a subset of agreements that may reduce transaction costs. The Article distinguishes between “technological” and “non-technological” transaction costs. Technological transaction costs entail the bargaining and information costs first emphasized by Ronald Coase, while non-technological transaction costs result from more fundamental departures from perfect competition, departures creating a risk of opportunism that accompanies relationship-specific investments. Modern law does accurately assess restraints that may reduce technological transaction costs—costs that are analogous to the sort of production costs recognized by the …

Statutory Interpretation In The Roberts Court’S First Era: An Empirical And Doctrinal Analysis, Anita S. Krishnakumar

UC Law Journal

This Article examines the Roberts Court’s statutory cases from its 2005–2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article’s approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court’s and individual Justices’ rates of reliance on fourteen different tools of statutory construction, and (2) engages in doctrinal analysis of the Court’s statutory cases, highlighting discernable patterns in the individual Justices’ interpretive approaches. The Article makes two significant contributions to the field of …

From Arms Race To Marketplace: The Complex Patent Ecosystem And Its Implications For The Patent System, Colleen V. Chien

UC Law Journal

For years, high-tech companies have amassed patents in order to deter patent litigation. Recently, a secondary market for patents has flourished, making it more likely that patents that would otherwise sit on the shelf will end up in the courtroom. This Article explores the current patent ecosystem, which includes both “arms race” and “marketplace” paradigms, in depth. I distinguish “patent-assertion entities,” entities that use patents primarily to obtain license fees rather than to support the development or transfer of technology, from other types of non-practicing entities. I contrast the patent arms race, whose goal is to provide entities with the …

Stanley In Cyberspace: Why The Privacy Protection Of The First Amendment Should Be More Like That Of The Fourth, Marc Jonathan Blitz

UC Law Journal

The 1969 case Stanley v. Georgia forbade the government from restricting the books that an individual may read or the films he may watch “in the privacy of his own home.” Since that time, the Supreme Court has repeatedly emphasized that Stanley’s protection applies solely within the physical boundaries of the home: While obscene books or films are protected inside of the home, they are not protected en route to it—whether in a package sent by mail, in a suitcase one is carrying to one’s house, or in a stream of data obtained through the Internet. However adequate this narrow …

Restoring Equipoise To Child Welfare, Rebecca Aviel

UC Law Journal

Since the Supreme Court’s widely criticized decision in DeShaney v. Winnebago County Department of Social Services, the principle that the Constitution affords no relief for a social worker’s failure to prevent harm to a child has been described as a “staple of our constitutional law.” Whatever might be said about this principle on its own terms, it produces very troubling incentives for social workers, who may still face constitutional tort liability when they act affirmatively to intervene in troubled families—the unjustified removal of a child from her parents’ custody, after all, is the sort of infringement proscribed by our Constitution’s …

Note – Blowing The Whistle On Van Asdale: Analysis And Recommendations, Christopher Wiener

UC Law Journal

This Note examines the state of whistleblower protection at the state and federal level. It focuses on the protection granted to whistleblowers of securities fraud under the Sarbanes-Oxley Act of 2002. Most courts considering the statute have required that the plaintiff have had both an objective and subjective belief that securities fraud had been committed. In 2009, the United States Court of Appeals for the Ninth Circuit decided Van Asdale v. International Game Technology. The court broke with the other circuits in not requiring the plaintiff-employees to have a subjective belief that a violation had actually occurred and, instead, conferred …

Liability For Unconscious Discrimination? A Thought Experiment In The Theory Of Employment Discrimination Law, Patrick S. Shin

UC Law Journal

Recent scholarship in employment discrimination law has wrestled with the problem of unconscious bias and its implications for antidiscrimination law. This Article addresses what some might regard as a naïve question: Should actions influenced by unconscious bias be regarded as discrimination under Title VII? The question might be considered naïve because any proposal for liability based on unconscious bias would surely be unripe for present implementation, and because there is no accepted method either for detecting such bias in individual cases, or for determining whether such bias actually influenced a person’s decisionmaking. But these practical considerations provide no answer to …

War And Peace In The Jury Room: How Capital Juries Reach Unanimity, Scott E. Sundby

UC Law Journal

Using data from the Capital Jury Project, this Article takes a close look inside the jury room at the process by which capital juries reach a unanimous verdict at the penalty phase. The Article first examines the relationship between first ballot voting patterns and the ultimate sentence, then explores the dynamics of group interaction in achieving unanimity. In particular, by using the jurors’ own narratives, the piece delves into the psychological process and arguments through which the majority jurors persuade the holdouts to change their votes. This process is especially intriguing because individual juries do not, of course, have any …

Note – A Reasonable Alternative To The Reasonable Alternative Design Requirement In Products Liability Law: A Look At Pennsylvania, Andrew Meade

UC Law Journal

The manner in which design defects should be defined has caused more controversy than any other area of products liability law. The Restatement (Third) defines a product design as defective when the foreseeable risks of harm from using a product could have been avoided if the manufacturer had used a reasonable alternative design. This definition departs from the Restatement (Second), which defines defective products as unreasonably dangerous if the product fails to meet the expectations of consumers. Without so stating, the Restatement (Third) essentially changes products liability law from a regime of strict liability to one of negligence. The debate …

Don’T Forget Due Process: The Path Not (Yet) Taken In § 2254 Habeas Corpus Adjudications, Justin F. Marceau

UC Law Journal

Countless articles and judicial opinions have been devoted to the task of deciphering the scope and application of the limitations on habeas corpus relief announced in the Anti- Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Over the past ten years courts and scholars have developed an intricate framework of analysis for nearly every subsection of § 2254. The decade-long process of interpretation and commentary has been characterized by questions of statutory meaning and federalism that appear to be as irresolvable for courts as they are intriguing to academics. But in the rush to sort out the minutiae of …

Note – Invalidating Gene Patents: Association For Molecular Pathology V. U.S. Patent & Trademark Office, Ashley Mchugh

UC Law Journal

Biotechnology companies and research institutions have patented thousands of genes based on the idea that a gene in an isolated and purified form is a patentable invention. The biotechnology industry has since grown to a multibillion dollar industry using gene patents as a basis for targeting new drugs, researching genetic disease, and developing diagnostics. One company, Myriad Genetics, faces the threat of having their patents invalidated because of their monopolistic use of their patents on human breast cancer genes. In Association for Molecular Pathology v. U.S. Patent & Trademark Office, the district court found Myriad’s gene patents invalid and unenforceable. …

Benchmark Legislation: A Measured Approach In The Fight Against Counterfeit Pharmaceuticals, Adam Powell

UC Law Journal

Pharmaceutical counterfeiting is unique in the field of counterfeiting because criminals only attempt to copy the appearance of a drug, not its actual effect. Because such counterfeit drugs are cheap to make and ineffective or dangerous, counterfeiters see immense profits without regard for the potential for injury or death. Furthermore, the complexity of distribution channels and lax penalties result in little risk for criminals.

One potential tool to address this problem is an electronic pedigree system that would track shipments of drugs and reduce the opportunity for counterfeiters to infiltrate the supply chain. Unfortunately, such a system is years away …

Will California Law Apply To Hubbs-Seaworld Research Institute’S Offshore Aquaculture Demonstration Project? An Analysis Of Theextraterritorial Application Of State Aquaculture Laws, Stephanie Showalter

UC Law Environmental Journal

No abstract provided.

Making Self-Regulation More Than Merely Symbolic: The Critical Role Of The Legal Environment, Jodi L. Short, Michael W. Toffel

Faculty Scholarship

No abstract provided.

What Would The Delegates Talk About? A Rough Agenda For A Constitutional Convention, Darien Shanske

Faculty Scholarship

No abstract provided.

Defining The Problem, Hadar Aviram

Faculty Scholarship

No abstract provided.

Dangerousness, Risk, And Release, Hadar Aviram, Valerie Kraml, Nicole Schmidt

Faculty Scholarship

No abstract provided.

A Cause Of Action For "Passing Off/Associational Marketing", Margreth Barrett

Faculty Scholarship

No abstract provided.

Reconceptualizing Restorative Justice, Kate Bloch

Faculty Scholarship

No abstract provided.

Revisiting Global Formulary Apportionment, Susan C. Morse

Faculty Scholarship

No abstract provided.

Above All Else Stop Digging: Local Government Law As A (Partial) Cause Of (And Solution To) The Current Housing Crisis, Darien Shanske

Faculty Scholarship

No abstract provided.

Grant Lake, Sierra Nevada, Fred Jay

UC Law Environmental Journal

No abstract provided.

Lake Ice, Richard Hurlburt

UC Law Environmental Journal

No abstract provided.

The Public Trust Doctrine - A Twenty-First Century Concept, Michael C. Blumm

UC Law Environmental Journal

No abstract provided.

Debt-For-Development Exchanges: Using External Debt To Mitigate Environmental Damage In Developing Countries, Steven Freeland, Ross P. Buckley

UC Law Environmental Journal

This article analyzes the conception, evolution and recent development of debt-for-nature exchange techniques. It explores how the lessons of the early, problematic exchanges have been learned and how the highly successful exchanges conducted recently in Madagascar, Egypt, and Kenya have been structured. It assesses the possibility of the Clean Development Mechanism under the Kyoto Protocol being tapped as a source of ongoing funding for projects, and concludes by arguing that, given the various benefits exchanges offer both donors and recipients, these techniques have been underutilized and deserve more careful consideration.

Plover, Point Reyes National Seashore, Richard Hurlburt

UC Law Environmental Journal

No abstract provided.

Great Blue Heron, Princeton Harbor, Angel Muzzin

UC Law Environmental Journal

No abstract provided.

Using The Public Trust Doctrine To Ensure The National Forests Protect The Public From Climate Change, John Meyer

UC Law Environmental Journal

Logging is one of the major contributors to greenhouse gas emissions. Every unnecessary timber sale by the Forest Service contributes to our climate change crisis. While President Barack Obama has stated his intention to have science guide the decision-making process, he recently allocated half a billion dollars for logging projects under a statutory framework that lacks scientific grounding. After an introduction, the article will look at the Healthy Forests Restoration Act and the American Recovery and Reinvestment Act of 2009 - a framework that encourages the Forest Service to continue polluting our atmosphere. Part III will look at the historical …

The Illinois Central Public Trust Doctrine And Federal Common Law: An Unconventional View, Crystal S. Chase

UC Law Environmental Journal

No abstract provided.