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2010

Faculty Publications

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Full-Text Articles in Law

Criminal Justice Information Sharing: A Legal Primer For Criminal Practitioners In California, W. David Ball, Robert Weisberg Dec 2010

Criminal Justice Information Sharing: A Legal Primer For Criminal Practitioners In California, W. David Ball, Robert Weisberg

Faculty Publications

California criminal justice agencies need access to data in order to provide security, health care treatment, and appropriate programming, as well as to coordinate these activities with other agencies. By the same token, outside agencies—whether criminal, social service, or non-governmental—could often do their jobs more effectively with access to information generated or retained within particular criminal justice agencies. Criminal justice realignment under AB 109 has only heightened the need for inter-agency data sharing and cooperation, yet there continue to be misunderstandings about the legal framework surrounding information exchange.

This Article aims to provide a basic, practical background on ...


Is Punishment Relevant After All? A Prescription For Informing Juries Of The Consequence Of Conviction, Jeffrey Bellin Dec 2010

Is Punishment Relevant After All? A Prescription For Informing Juries Of The Consequence Of Conviction, Jeffrey Bellin

Faculty Publications

The American jury, once heralded as “the great corrective of law in its actual administration,” has suffered numerous setbacks in the modern era. As a result, jurors have largely become bystanders in a criminal justice system that relies on increasingly severe punishments to incarcerate tens of thousands of offenders each year. The overwhelming majority of cases are resolved short of trial and, even when trials occur, jurors are instructed to find only the facts necessary for legal guilt. Apart from this narrow task, jurors need not, in the eyes of the law, concern themselves with whether a conviction and subsequent ...


Reframing Antitrust In Light Of Scientific Revolution: Accounting For Transaction Costs In Rule Of Reason Analysis, Alan J. Meese Dec 2010

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

Faculty Publications

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 ...


Justice Souter And The Civil Rules, Scott Dodson Dec 2010

Justice Souter And The Civil Rules, Scott Dodson

Faculty Publications

Justice Souter’s recent retirement from the Court after nearly twenty years presents a unique opportunity to comment on his legacy. No doubt others will eulogize or castigate him for his membership in the Planned Parenthood v. Casey troika, but there is much more to the man and his jurisprudence. Indeed, the danger is that Justice Souter will be pigeonholed into one opinion, an opinion that he wrote early in his Supreme Court career, to the detriment of understanding the complex justice that he was. And what it finds is a justice deeply committed to the fair treatment of the ...


Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow Dec 2010

Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow

Faculty Publications

Issues of fair use in copyright cases are usually decided at summary judgment. But it was not always so. For well over a century, juries routinely decided these issues. The law recognized that fair use issues were highly subjective and thereby inherently factual — unfit for summary disposition by a judge. Today, however, all this has been forgotten. Judges are characterizing factual issues as purely legal so that fair use may be decided at summary judgment. Even while judges acknowledge that reasonable minds may disagree on these issues, they characterize the issues as legal, preventing them from ever reaching a jury ...


Does Ricci Herald A New Disparate Impact?, Joseph Seiner, Benjamin N. Gutman Dec 2010

Does Ricci Herald A New Disparate Impact?, Joseph Seiner, Benjamin N. Gutman

Faculty Publications

Federal law has long prohibited not just intentional discrimination by employers, but also practices that have an unintentional disparate impact on minorities. A cryptic passage at the end of the Supreme Court's recent decision in Ricci v. DeStefano may signal a sea change for this disparate impact doctrine. Ricci, a lawsuit about a civil-service exam for firefighters, received widespread attention as a case about intentional discrimination. We show that the opinion also can be read to suggest a new affirmative defense for employers facing claims of disparate impact. Before Ricci, disparate impact was a purely no-fault doctrine. An employer ...


A Contractual Approach To Shareholder Oppression Law, Benjamin Means Dec 2010

A Contractual Approach To Shareholder Oppression Law, Benjamin Means

Faculty Publications

According to standard law and economics, minority shareholders in closely held corporations must bargain against opportunism by controlling shareholders before investing. Put simply, you made your bed, now you must lie in it. Yet most courts offer a remedy for shareholder oppression, often premised on the notion that controlling shareholders owe fiduciary duties to the minority or must honor the minority's reasonable expectations. Thus, law and economics, the dominant mode of corporate law scholarship, appears irreconcilably opposed to minority shareholder protection, a defining feature of the existing law of close corporations.

This Article contends that a more nuanced theory ...


Cultural Norms And Race Discrimination Standards: A Case Study In How The Two Diverge, Derek W. Black Dec 2010

Cultural Norms And Race Discrimination Standards: A Case Study In How The Two Diverge, Derek W. Black

Faculty Publications

The legal standard for race discrimination - the intent standard - has been scrutinized and justified for decades, but that conversation has occurred almost entirely within the legal community. Relatively little effort has been made to engage the public. This Article posits that the discussion of discrimination standards must account for and include public understandings of race and discrimination because race is a socially constructed concept and discrimination is culturally contingent. Race discrimination standards based solely upon the legal community’s perceptions are susceptible to significant flaws. This Article begins the incorporation of public understandings of race and discrimination by examining the ...


Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii Dec 2010

Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii

Faculty Publications

This is an introductory essay to Volume 23, Number 2, of the FEDERAL SENTENCING REPORTER, which considers the state of American criminal justice policy in 2010, two years after the "Change" election of 2008. Part I of the essay paints a statistical picture of trends in federal criminal practice and sentencing over the last half-decade or so, with particular emphasis on sentence severity and the degree of regional and inter-judge sentencing disparity. The statistics suggest that the expectation that the 2005 Booker decision would produce a substantial increase in the exercise of judicial sentencing discretion and a progressive abandonment of ...


"The People" Of The Second Amendment: Citizenship And The Right To Bear Arms, Pratheepan Gulasekaram Nov 2010

"The People" Of The Second Amendment: Citizenship And The Right To Bear Arms, Pratheepan Gulasekaram

Faculty Publications

The Supreme Court's recent Second Amendment decision, District of Columbia v. Heller asserts that the Constitution's right to bear arms is an individual right to armed self-defense held by law-abidingcitizens.” This Article examines the implications of this description, concluding that the Second Amendment cannot concurrently be a right of armed self-defense and restricted to citizens. The Article proceeds in three parts. First, it analyzes the term "the people" as it has been interpreted in recent Court cases. The Article concludes that constitutional text and Supreme Court jurisprudence provide no sustainable basis to believe the Second Amendment is ...


Reconceptualizing The Fifth Amendment Prohibition Of Adverse Comment On Criminal Defendants' Trial Sentence, Jeffrey Bellin Nov 2010

Reconceptualizing The Fifth Amendment Prohibition Of Adverse Comment On Criminal Defendants' Trial Sentence, Jeffrey Bellin

Faculty Publications

Griffin v. California holds that the Fifth Amendment privilege against compelled self-incrimination prohibits a prosecutor from arguing that a defendant’s failure to testify supports an inference of guilt. In the four decades since Griffin was decided, Griffin’s doctrinal underpinnings have been strongly criticized by prominent jurists and commentators, and even Griffin’s contemporary defenders struggle to place the constitutional prohibition of adverse comment on defendant silence within a coherent doctrinal framework.

In light of these largely unanswered criticisms, this Article posits that the current Fifth Amendment-based prohibition of adverse comment is untenable and must be recast in a ...


Consider The Source: When The Harasser Is The Boss, Susan Grover, Kimberly Piro Nov 2010

Consider The Source: When The Harasser Is The Boss, Susan Grover, Kimberly Piro

Faculty Publications

In Consider the Source, Susan Grover and Kim Piro argue for a change in the analysis that courts apply to determine whether actionable workplace harassment has occurred. They identify a gap in current doctrine, which allows courts to ignore the status of the harasser as co-worker or supervisor. The authors argue that harassment at the hands of a supervisor is necessarily more severe and pervasive than the same harassment by a coworker. As a result, they recommend that the harasser's identity as a supervisor or co-worker be treated as a necessary consideration when courts assess whether actionable harassment has ...


China And Disability Rights, Michael Ashley Stein Oct 2010

China And Disability Rights, Michael Ashley Stein

Faculty Publications

No abstract provided.


Brave New Eugenics: Regulating Assisted Reproductive Technologies In The Name Of Better Babies, Kerry L. Macintosh Oct 2010

Brave New Eugenics: Regulating Assisted Reproductive Technologies In The Name Of Better Babies, Kerry L. Macintosh

Faculty Publications

Infertile men and women have been using assisted reproductive technologies (ART) to conceive children since the first "test-tube baby" was born in 1978. During the past decade, however, the federal government has begun to clamp down on ART, asserting safety concerns as grounds forbanning novel technologies such as cloning, nuclear transfer, and ooplasm transfer.

Some scholars and policymakers now want to extend governmental regulation to include conventional ART such as in vitro fertilization (IVF) and intracytoplasmic sperm injection (ICSI). They claim children conceived through ART face an increased risk of birth defects and other health problems.

This Article examines the ...


Bargaining In The Shadow Of God's Law: Islamic Mahr Contracts And The Perils Of Legal Specialization, Nathan B. Oman Oct 2010

Bargaining In The Shadow Of God's Law: Islamic Mahr Contracts And The Perils Of Legal Specialization, Nathan B. Oman

Faculty Publications

No abstract provided.


What Is Civil Justice, Jason M. Solomon Oct 2010

What Is Civil Justice, Jason M. Solomon

Faculty Publications

This Article first explores the meaning of the term “civil justice” as it is used in both academic and popular discourse. It then examines the idea of civil justice by looking at three key examples: (1) the U.S. tort system (specifically governing auto accidents); (2) the no-fault regimes of New Zealand, U.S. workers’ compensation, and the 9/11 Victim Compensation Fund; and (3) the phenomenon of apologies, instead of compensation, as remedies in medical malpractice cases. The Article concludes that an important component of civil justice is the ability of a person to hold accountable one who has ...


Redressing All Erisa Fiduciary Breaches Under Section 409 (A), Eric D. Chason Oct 2010

Redressing All Erisa Fiduciary Breaches Under Section 409 (A), Eric D. Chason

Faculty Publications

No abstract provided.


The Trouble With Treaties: Immigration And Judicial Law, Angela M. Banks Oct 2010

The Trouble With Treaties: Immigration And Judicial Law, Angela M. Banks

Faculty Publications

No abstract provided.


New Pleading, New Discovery, Scott Dodson Oct 2010

New Pleading, New Discovery, Scott Dodson

Faculty Publications

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual insufficiency often is a poor proxy for meritlessness. Some plaintiffs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is ...


Book Review: Raise The Bar: Real World Solutions For A Troubled Profession, Rebecca K. Blemberg Oct 2010

Book Review: Raise The Bar: Real World Solutions For A Troubled Profession, Rebecca K. Blemberg

Faculty Publications

No abstract provided.


Debt As Venture Capital, Darian M. Ibrahim Oct 2010

Debt As Venture Capital, Darian M. Ibrahim

Faculty Publications

Venture debt, or loans to rapid-growth start-ups, is a puzzle. How are start-ups with no track records, positive cash flows, tangible collateral, or personal guarantees from entrepreneurs able to attract billions of dollars in loans each year? And why do start-ups take on debt rather than rely exclusively on equity investments from angel investors and venture capitalists (VCs), as well-known capital structure theories from corporate finance would seem to predict in this context? Using hand-collected interview data and theoretical contributions from finance, economics, and law, this Article solves the puzzle of venture debt by revealing that a start-up’s VC ...


Immature Citizens And The State, Vivian E. Hamilton Oct 2010

Immature Citizens And The State, Vivian E. Hamilton

Faculty Publications

Citizens are born, but they are also made. How its citizens come to be—whether the educations they receive will expand or constrain their future options, whether the values they assimilate will encourage or dissuade their civic engagement, etc.—fundamentally concerns the state. Through the power it wields over a vast range of policymaking contexts, the state can significantly influence (or designate those who will influence) many of the formative experiences of young citizens. Young citizens’ accumulated experiences in turn can significantly influence the future mature citizens they will become. The state insufficiently considers the cumulative nature of its citizens ...


Construing Wills And Trusts During The Estate Tax Hiatus In 2010, S. Alan Medlin, F. Ladson Boyle Oct 2010

Construing Wills And Trusts During The Estate Tax Hiatus In 2010, S. Alan Medlin, F. Ladson Boyle

Faculty Publications

Many estate planners have drafted wills and revocable trusts with dispositive provisions based on formulas. These formulas often use language based on transfer tax terminology. For clients who die in 2010, the language used in these formulas will be ambiguous, if not apparently meaningless, because Congress failed to re-institute the estate tax for 2010. The resulting 2010 estate tax hiatus will result in will and revocable trust construction problems for the estates of many decedents who die during the hiatus. Courts will have to use statutory and common law construction methods to attempt to determine the decedent's dispositive intentions ...


Erisa Preemption Doctrine As Health Policy, Joshua P. Booth, Larry I. Palmer Oct 2010

Erisa Preemption Doctrine As Health Policy, Joshua P. Booth, Larry I. Palmer

Faculty Publications

No abstract provided.


Uniformity, Inferiority, And The Law Of The Circuit Doctrine, Martha Dragich Oct 2010

Uniformity, Inferiority, And The Law Of The Circuit Doctrine, Martha Dragich

Faculty Publications

This Article considers whether Congress or the Supreme Court could reverse the law of the circuit doctrine. Part I explores the importance of uniformity in federal law. Part II considers the extent to which a desire for uniformity has shaped the structure of the federal court system. Part III considers how the evolution of the courts of appeals as independent regional adjudicatory bodies affects the uniformity objective. Part IV examines the attributes of superior and inferior courts, and applies these criteria to the current courts of appeals. Part V examines the tension between uniformity and inferiority as determinants of the ...


Operating Efficiently Post-Bilski By Ordering Patent Doctrine Decision-Making, Dennis D. Crouch, Robert P. Merges Oct 2010

Operating Efficiently Post-Bilski By Ordering Patent Doctrine Decision-Making, Dennis D. Crouch, Robert P. Merges

Faculty Publications

Now that the Supreme Court has decided Bilski v. Kappos, there is an enormous amount of speculation about the case’s impact on patent applicants, litigants, and other participants in the patent system. Most of the commentary is concerned with the holding in Bilski, how this holding will be applied by courts and the Patent Office, and ultimately, the effect of the holding on inventors, and those who hold and seek patents.


Private Transfer Fee Covenants: Cleaning Up The Mess, R. Wilson Freyermuth Oct 2010

Private Transfer Fee Covenants: Cleaning Up The Mess, R. Wilson Freyermuth

Faculty Publications

The purposes for creating a "private transfer fee" covenant range from supporting community services to creating a future revenue stream for the developer. Traditionally, courts examined these covenants using the touch and concern standard. The Restatement (Third) of Property: Servitudes, however, rejects this standard. This Article discusses this new approach as it relates to private transfer fees. The author argues that private transfer fee covenants are contrary to public policy and encourages states to enact legislation limiting the enforcement of these covenants.


Equity And Efficiency In Intellectual Property Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine Oct 2010

Equity And Efficiency In Intellectual Property Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

This article evaluates the Current US income tax regime governing intellectual property by focusing on the traditional principles of tax policy - tax fairness and efficiency. It highlights the shortcomings of the current tax system in fulfilling both of these tenets.


‘The Grass That Gets Trampled When Elephants Fight’: Will The Codification Of The Crime Of Aggression Protect Women?, Beth Van Schaack Sep 2010

‘The Grass That Gets Trampled When Elephants Fight’: Will The Codification Of The Crime Of Aggression Protect Women?, Beth Van Schaack

Faculty Publications

This article analyzes the outcome of the Kampala process with an eye toward the rarely-considered gender aspects of the crime of aggression, whether or not the provisions adopted represent an advancement for women, and how aspects of feminist theory might interpret the new regime. The Article concludes that any impact of the provisions will inevitably be limited by gaps and ambiguities in the definition of the crime and the jurisdictional regime, which is premised on state consent and exempts non-states parties altogether. At the same time, the insertion of the crime of aggression in the Rome Statute enables the prosecution ...


Did Sarbanes-Oxley Lead To Better Financial Reporting?, Dennis Chambers, Dana R. Hermanson, Jeff L. Payne Sep 2010

Did Sarbanes-Oxley Lead To Better Financial Reporting?, Dennis Chambers, Dana R. Hermanson, Jeff L. Payne

Faculty Publications

The article describes and summarizes five studies that examined whether the landmark Sarbanes-Oxley Act of 2002 (SOX) was beneficial or not to financial reporting. The U.S. Congress is stated to have passed the legislation on July 25, 2002 in reaction to a series of financial accounting scandals involving such companies as Enron and WorldCom, as well as the demise of the accounting firm Arthur Andersen LLP. The author asserts that all five of the studies provide evidence of a significant improvement in the financial reporting environment since SOX.