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 …

Engquist And The Erosion Of The Equal Protection Clause: An Attempt To Stop The Creep Of Irrational Dicta, Darien Shanske

UC Law Journal

This Article is about the erosion of the protections offered by the Equal Protection Clause resulting from the Supreme Court's decision in Engquist v. Oregon Department of Agriculture. Lower courts, purportedly following Engquist, have limited the reach of the Equal Protection Clause in several dozen cases in the last year. Until Engquist, it was uncontroversial that any person alleging irrational treatment by a government official could at least challenge the government official to give a reason that would satisfy rational basis review. Since the Supreme Court decided Engquist, lower courts have leapt to find that government officials cannot be found …

Copyright Infringement And Harmless Speech, Christina Bohannan

UC Law Journal

Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes real harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right-of-publicity laws, require that the defendant's speech is likely to cause harm, copyright law does not make harm a requirement of infringement. Copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, but harm is not always required and …

Police "Science" In The Interrogation Room: Seventy Years Of Psuedo-Psychological Interrogation Methods To Obtain Inadmissible Confessions, Brian R. Gallini

UC Law Journal

Nearly all confessions obtained by interrogators nationwide are inadmissible, but nonetheless admitted. In the process, police arrest the wrong suspect and allow the guilty to go free. An unshakeable addiction to pseudo-scientific interrogation methods-initially created in the 1940s-is to blame. The so-called "Reid technique" of interrogation was initially a welcome and revolutionary change from the violent "third degree" method it replaced. But we no longer live in the 1940s and, not surprisingly, we no longer drive 1940s automobiles, practice early-twentieth-century medicine, or dial rotary phones. Why, then, are police still using 1940s methods of interrogation?

Moreover, the outdated Reid technique …

Identifying The Duty Prohibiting Outsider Trading On Material Nonpublic Information, Thomas Lee Hazen

UC Law Journal

The federal securities laws do not contain a definition of insider trading. As a result, case law has developed in a common law fashion from the broad statutory antifraud prohibitions. The result has been a tortuous path in defining the reach of the prohibition against trading securities on the basis of nonpublic information. This Article examines outsider trading, which occurs when market participants who are not corporate insiders obtain material nonpublic information. The Article explores the distinction between outsiders who may not and those who may enter into securities transactions on the basis of that information. SEC rulemaking has adopted …

Assessing The Constitutionality Of Reproductive Technologies Regulation: A Bioethical Approach, Elyse Whitney Grant

UC Law Journal

Current reproductive technologies have given parents the means to select against unwanted genetic characteristics by discarding or aborting genetically undesirable embryos or fetuses. Technologies such as preimplantation genetic screening and prenatal genetic testing allow parents to test embryos and previable fetuses, respectively, for genes associated with an array of nontherapeutic and therapeutic characteristics from eye color to sex to disease. Because regulation of access to these technologies seems likely, the Supreme Court will be called upon to address the constitutionality of these regulations. The Court will face difficult questions about the balance between the procreative liberty interest in accessing information …

Sodom's Shadow: The Uncertain Line Between Public And Private Morality, Todd E. Pettys

UC Law Journal

In citizens' debates about issues of public policy, we frequently encounter what this Article calls the "divine accountability thesis"-the controversial claim that the divine realm will punish a city, state, or nation unless it performs or proscribes certain forms of conduct. Many of us reject that claim, but its persistent usage in numerous societies over the past five thousand years teaches us a great deal about citizens' political selfconceptions. This Article begins by arguing that the divine accountability thesis illustrates human beings' deeply ingrained tendency to regard their political communities as discrete moral entities, individually deserving of punishment or reward. …

The Case For Returning Politicians To The Supreme Court, Robert Alleman, Jason Mazzone

UC Law Journal

In the past few decades, prior service in the federal judiciary has become an increasingly important qualification for appointment to the Supreme Court. As a result, the Court has lost one kind of Justice who was very nearly a constant on the Court for 170 years: the politician who joins the Court after distinguished and prominent service in public life. Politicians of national prominence should be returned to the Supreme Court. These statesmen give legitimacy to the Court in an age when confirmation hearings are unrevealing. They have a history of accountability on concrete legal and political issues. They bring …

Ortiz Got It Wrong: Why The Seventh Amendment Does Not Protect The Right To Jury Trial In Class Action Suits Under Frcp 23, Joshua D. Stadtler

UC Law Journal

This Note argues that the Seventh Amendment's jury trial right does not include litigants in class suits and proposes returning class action suits to their equity roots. Part I explores the historical trajectory of class action suits, beginning with their emergence under equity and their status within the Seventh Amendment's law/equity distinction. It then explores the early American jurisprudential recognition of them as exclusively in equity and the erosion of this recognition in the wake of the Rules Enabling Act and the Federal Rules of Civil Procedure. Part II surveys the arc of Supreme Court decisional law that led to …

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

UC Law Journal

This Article deploys a comparative approach to question a widely shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian "invention," absent in the common law. Drawing on an influential strand offunctionalist comparative law, the Article identifies the "functional equivalents of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late-nineteenth and earlytwentieth century in fields as diverse as water law, nuisance, tortious interference with contractual relations, and labor law. The Article investigates the reasons why in the …

The National Impact Test: Applying Principled Commerce Clause Analysis To Federal Environmental Regulation, David M. Metres

UC Law Journal

Current doctrine limits Congress's commerce power to regulation of "economic" activities. Because many environmental laws regulate noneconomic objects, some have argued that the Constitution does not grant Congress power to enact these environmental laws.

This Note rejects analysis of whether an object of regulation is "economic," and substitutes a test inspired by the principles underlying the Commerce Clause to demarcate the proper spheres of federal and state regulatory authority. Under the "national impact test," courts should evaluate whether federal legislation regulates activities with a nationwide impact or which the states cannot regulate on their own. If Congress does not make …

Immoral Immunity: Using A Totality Of The Circumstances Approach To Narrow The Scope Of Section 230 Of The Communications Decency Act, Ali Grace Zieglowsky

UC Law Journal

In an effort to remove the disincentives to self-regulation created by the decision in Stratton Oakmont, Inc. v. Prodigy Services Co., and to avoid the onslaught of litigation that would otherwise likely have ensued, Congress passed § 230 of the Communications Decency Act in 1996. With the tremendous and unforeseeable growth the internet experienced immediately thereafter, and continues to encounter today, what should have been a simple mechanism to allow innocent internet service providers (ISPs) to edit and delete content without fear of being charged as publishers has evolved into a relentlessly broad shield that protects contemptible conduct by ISPs …

America's New Glass Ceiling: Unpaid Internships, The Fair Labor Standards Act, And The Urgent Need For Change, Jessica L. Curiale

UC Law Journal

Unpaid internships are increasing in the United States, and one can surmise that they will become even more common as the economy continues to deteriorate. Most internships are not paid, especially in "glamorous fields," such as politics or entertainment. Instead of wages, the company offering the internship promises the candidate "great experience" and an opportunity to get his foot in the door. Because employers respond favorably to internship experience on a resume, individuals see internships as increasingly necessary to be competitive in the job market. But without being paid, low-income individuals often cannot afford to take them. This raises a …

The "New" Presumption Against Preemption, Mary J. Davis

UC Law Journal

Is there or isn't there a "presumption against preemption"? The Supreme Court continues to mention it, but then does, or does not, apply it in a way that helps us understand what it is. This Article explores the Court's preemption opinions in the last several decades, particularly its most recent pronouncements, and concludes that, indeed, there is a presumption against preemption. It is a "new" presumption in the sense that it is born of the Court's active preemption docket in the last two decades, which has more narrowly defined both express and implied preemption analysis. The "new" presumption is stronger …

Inequitable Sentencing For Possession Of Child Pornography: A Failure To Distinguish Voyeurs From Pederasts, Jesse P. Basbaum

UC Law Journal

This Note identifies several infirmities of United States Sentencing Guideline section 2 G2.2, the sentencing scheme for possession of child pornography. The production and web-based dissemination of child pornography images has increased substantially over the past decade. The Department of Justice has aggressively prosecuted these crimes under the rationale that (r) possession of child pornography leads to contact offenses, (2) demand drives supply, and (3) the mere availability of an image or video constitutes continued and indirect abuse of the child depicted. In light of these and other concerns, Congress has enacted dramatic increases in the potential sentences for possessors …

Democracy And The Courts: The Case Of Abortion, Linda Greenhouse

UC Law Journal

No abstract provided.

Judicial Independence: Under Attack Again?, Ming W. Chin

UC Law Journal

No abstract provided.

How Senate Confirmation Hearings Should Better Educate Senators And The American Pubic: The Instructional Necessity Of Case-Specific Questioning, Vikram David Amar

UC Law Journal

This Article undertakes a systematic rebuttal to the arguments made by Supreme Court nominees and others that Court nominees are constrained, in their Senate hearings on possible confirmation, from expressing their specific views on legal issues and cases of the day. It argues that nominee articulation of such case-specific views is not only permissible, it is necessary for the Senate, and for the country, to learn anything meaningful about the Court, the nominees, the Constitution, and the relationship between them.