Digital Commons Network^™

The Federal Communications Commission And The Nsa Call Database: The Duty To Investigate, Alan J. Chang

UC Law SF Communications and Entertainment Journal

In May of 2006, news broke out across the United States that the National Security Agency had compiled a call record database that consisted of numerous American consumers' private phone records. The NSA apparently obtained this data directly from four of the nation's largest phone providers at the time: AT&T, BellSouth, Verizon, and SBC. Although Congress called for an FCC investigation as to whether or not these phone companies broke the law, the Commission ultimately refused to involve itself in the matter despite the potentially immense breach of consumer privacy involved. Based on the minimal precedent to have covered this …

From The Fringes Of Copyright Law: Examining California's True Name And Address Internet Piracy Statute, Brian Mcfarlin

UC Law Constitutional Quarterly

In 2004, California Governor Schwarzenegger signed into law California Penal Code section 653aa. Under the statute, anyone located in California who, "knowing that a particular recording or audiovisual work is commercial, knowingly electronically disseminates all or substantially all of that commercial recording or audiovisual work to more than 10 other people without disclosing his or her email address, and the title of the recording or audiovisual work" is guilty of a misdemeanor. While this statute allows copyright holders, such as music companies, to easily identify copyright infringers online, it accomplishes this goal by going outside of federal copyright law entirely …

Less Privacy Please, We're British: Investigating Crime With Dna In The U.K. And The U.S., Duncan Carling

UC Law SF International Law Review

The United States and Great Britain are the world leaders in the use of DNA databases for criminal investigations, but the laws governing their use are evolving differently in each country. This note compares the American and British DNA database programs, and looks at two notable differences in practice: the collection of DNA samples from people who have been arrested but not convicted, and the technique of looking for an offender's relatives in the database. The note offers an explanation as to why the legislation is evolving differently, and argues that disparate cultural views on privacy are as much part …

Defining Substantial Activity: Helping Tax-Exempt Hospitals Keep Their Tax-Exempt Status, Kevin Leo

UC Law Business Journal

Joint ventures between tax-exempt hospitals and for-profit organizations have become a common mechanism for hospitals to acquire new sources of revenue and expand their health care services without completely relying on more traditional sources of funding. Joint ventures between tax-exempt organizations and for-profit entities can lead to unfavorable tax consequences for the exempt organization if the venture is not structured in accordance with the rules and regulations provided by the Internal Revenue Service. IRS Revenue Ruling 2004-51 held that an exempt organization would maintain its exempt status as long as it only contributed an insubstantial amount of its assets or …

The Legal Status Of Hijab In The United States: A Look At The Sociopolitical Influences On The Legal Right To Wear The Muslim Headscarf, Aliah Abdo

UC Law Journal of Race and Economic Justice

The First Amendment of the United States Constitution guarantees freedom of religion, however the current sociopolitical and legal climate has allowed for various restrictions on hijab, the headscarf worn by Muslim women. This note surveys recent restrictions and bans affecting the wearing of hijab in educational settings, employment, prison entry, state driver license photos, athletic competitions, airports, and in court, noting an alarming trend both internationally and domestically. The author suggests that the justifications associated with actions against hijab are merely pretextual and that these actions are often based on misconceptions and misunderstandings surrounding hijab, the Muslim community, and the …

The Unmet Promises Of Care Not Cash, Teddy Ky-Nam Miller

UC Law Journal of Race and Economic Justice

In November of 2002 San Francisco voters approved Proposition N, titled Care Not Cash, with the intent that it would reduce homelessness and improve the health and welfare of homeless persons receiving General Assistance. This note examines the effectiveness of Care Not Cash in combating homelessness and in achieving its promise of services and aid with the curtailment of General Assistance. In evaluating Care Not Cash's effectiveness, the author reviews homeless assistance programs employed by cities and municipalities throughout the United States. Additionally, the author explores alternative homeless outreach programs currently existent in San Francisco which have been effective in …

Challenges Of Tough Love: Examining San Francisco's Community Justice Center And Evaluating Its Prospects For Success, Todd W. Daloz

UC Law Journal of Race and Economic Justice

Decaying urban neighborhoods are a reality in cities across the United States. As various local governments work to improve the quality of life for the residents of such areas through increased law enforcement, many have come up against the limitations of the criminal justice system as a tool for change. This note examines the history and challenges of quality-of-life ordinances and the growth and development of community courts as a reaction to ineffective urban courts and as a structure for enabling change. The author focuses specifically on the new community justice center in San Francisco and offers an assessment of …

On Thin Ice: Cracking Down On The Racial Profiling Of Immigrants And Implementing A Compassionate Enforcement Policy, Abby Sullivan

UC Law Journal of Race and Economic Justice

This note explores racial profiling in the enforcement of federal immigration law. In consistently deferring to the judgment of immigration officers, the United States Supreme Court has vested Immigration and Customs Enforcement with broad and sweeping discretion to adopt racist law enforcement practices that would be impermissible outside of the immigration context. In doing so, the Court has taken the erroneous position that immigration proceedings are purely civil and therefore do not require the procedural protections that collectively form the pillar of the criminal justice system. A myriad of studies demonstrate that immigrants are significantly less likely than their American-born …

Lead Paint: Who Will Bear The Cost Of Abating The Latest Public Nuisance, Greg J. Carlson

UC Law Journal

In the past, mass tort litigation has arisen in the contexts of asbestos, tobacco, environmental contamination and handgun manufacturing. While the theory of public nuisance has found its way into court discussion in most of these contexts, recent lead paint litigation has opened a new chapter to the uncertainties that accompany the use of public nuisance in mass tort litigation. Specifically, a question of liability arises. While lead paint manufacturers may be ordered to follow a particular set of measures to eliminate the paint and its hazards, the answer to one critical question still remains uncertain: Who will ultimately bear …

Inmates. Rehabilitation And Visitation Programs. Statute.

Initiatives

Eliminates certain restrictions on prisoners’ participation in educational and substance dependency classes and family visitation programs. Prohibits exclusion based on sentence, custody designation, prior crimes or disciplinary offenses and commitment offenses. Provides that inmates condemned to die are not eligible for family visitation program. Allows family visitation privileges only to inmates who: (1) are not residing in reception centers or administrative segregation/security housing units; (2) are competent to and have obtained a high school diploma or equivalent; (3) agree to random drug testing; (4) pay $25 toward cost of a visit. Summary of estimate by Legislative Analyst and Director of …

Stray And Owner-Relinquished Animals. Statute.

Initiatives

Mandates methods and practices for animal euthanasia in all public and private agencies sheltering stray or owner-relinquished animals. Requires mandatory holding periods and conditions that must be satisfied before any animal is killed. Mandates shelters to develop and follow care, cleaning, and disease-prevention protocols. Requires funds collected from dog license revenues to be used for free and low-cost animal sterilization and medical assistance programs. Requires that most animals adopted from specified agencies be spayed or neutered prior to adoption. Creates reporting, tracking, and notification requirements. Establishes private enforcement authority. Summary of estimate by Legislative Analyst and Director of Finance of …

Reduces Public Pension And Retirement Health Care Benefits. Constitutional Amendment.

Initiatives

For peace officers, firefighters, public safety, and other public employees hired after July 1, 2009, this measure: reduces pension and retirement health care benefits; increases minimum retirement age; restricts early retirement; increases minimum age and years of employment needed to qualify for retirement health care benefits; and limits post-retirement pension increases. For all public employees this measure: prohibits retroactive increases in retirement benefits; requires public employers to make annual payments to fund future benefit costs; and allows public employers to adjust retirement contribution rates in future labor agreements. Summary of estimate by Legislative Analyst and Director of Finance of fiscal …

The Fourth Amendment And Cell Phone Location Tracking: Where Are We, Kevin Mclaughlin

UC Law SF Communications and Entertainment Journal

Cell phones are a way of life in our society. While most people readily use their cell phones, they don't realize that cell phones also provide signals to track their location. This manner of cell phone tracking may be a violation of the Fourth Amendment right to be free of unreasonable searches and seizures. Under the test developed in Katz and its progeny, depending on a number of factors, cell phone tracking may qualify as a reasonable search. However, because cell phone tracking appears to implicate a number of core Fourth Amendment doctrines, it appears to constitute an unreasonable search.

Deportation Of Human Rights Abusers: Towards Achieving Accountability, Not Fostering Impunity, Simona Agnolucci

UC Law SF International Law Review

This article discusses recently enacted changes to U.S. immigration law allowing for deportation of violators of international human rights norms. By (1) examining Canada's implementation of similar immigration-based accountability measures for human rights violators; (2) analyzing three cases of alleged human rights violators who left their countries of origin; and (3) discussing deportation. of human rights violators in light of traditional theories of criminal punishment, this paper concludes that deportation alone is an inadequate means of achieving accountability. The article concludes with a series of guidelines for determining whether deportation should be used as part of a greater scheme to …

Crime Victims Protection Act: Stop Gang And Street Crime

Initiatives

None

Secure And Affordable Health Care Act Of 2008

Initiatives

None

A Prescription For California's Ailing Inmate Treatment System: An Independent Corrections Ombudsman, Arthur L. Alarcon

UC Law Journal

California's prison system is totally broken and in urgent need of reform on many fronts. Over the past twenty-five years, California's inmate population has grown over 500%, the number of institutions has nearly tripled, and prison litigation costs have escalated tremendously. In 2004, California Governor Arnold Schwarzenegger convened the Corrections Independent Review Panel to assess issues affecting the prison system. The Panel presented a number of possible solutions to the problems faced by California's prisons, but sweeping new reforms are still needed if the entire system is to be overhauled effectively and brought into compliance with constitutional requirements.

Among the …

Improperly Performed Abortion As Fetal Homicide: An Uneasy Coexistence Becomes More Difficult, Laura E. Back

UC Law SF Journal on Gender and Justice

Is the difference between abortion and fetal homicide the pregnant woman's choice-or the provider's medical license? Reports of a recent Texas case suggest that ever-proliferating fetal homicide laws may be applied to charge non-medical abortion providers with murder. Although the state has legitimate interests in protecting women's health through prohibition of dangerous non-medical abortions, it defies justice to enforce such prohibitions by charging violators with murder of the aborted fetus. This Note explores how constitutional limitations on permissible state interests in regulating abortion provide a basis for Eighth Amendment proportionality and due process challenges to this misuse of fetal homicide …

To What Extent Can Congress Change The Patent Right Without Effecting A Taking, Jesse S. Chui

UC Law Constitutional Quarterly

The Constitution confers upon Congress the power to "promote the ... useful Arts, by securing for limited Times to... Inventors the exclusive Right to their... Discoveries." Since the Patent Act of 1790, Congress has continued to define and redefine the metes and bounds of the patent right. This tradition continues with the Patent Reform Act of 2005, introduced in the House of Representatives on June 8, 2005.

The State Secrets Privilege: What's Wrong With It, How It Got That Way, And How The Courts Can Fix It, Christohper D. Yamaoka

UC Law Constitutional Quarterly

The state secrets privilege shields evidence from discovery at trial where disclosure of the evidence would threaten national security. It is an important privilege, allowing the government to protect potentially dangerous information from being exposed by way of litigation. But it is also a powerful privilege; when accepted, it often leads to outright dismissal of the case. Given its nuclear effect, expansion of the doctrine beyond its legitimate bounds is constitutionally troubling. And indeed, over the last half century, the privilege has expanded far beyond its original form: courts have grown increasingly likely to use it to dismiss litigation before …

Tough Love: Should We Analyze Federal Emergencymanagement Agency Disaster Planning Under The National Environmental Policy Act?, Katherine Hausrath

UC Law Environmental Journal

No abstract provided.

Towards And Explicit Balancing Inquiry - R.A.V. And Black Through The Lens Of Foreign Freedom Of Expression Jurisprudence, Matthew S. Melamed

UC Law Journal

In this Note, the author considers the Supreme Court's recent First Amendment jurisprudence-in particular R.A.V. v. City of St. Paul and Virginia v. Black, two cases concerning legislative attempts to criminalize cross-burning-through the eyes of foreign freedom of speech jurisprudence. He argues that the freedom of speech adjudicative models provided by the European Court of Human Rights and the Canadian Constitutional Court not only suggest a clearer mode of First Amendment adjudication, but may also enable us to more clearly understand the nature of the emergent case-by-case balancing jurisprudence implicitly present in both R.A.V. and Black.

Part I of the …

Blakely's Silver Lining; Sentencing Guidelines, Judicial Discretion, And Crime, Joanna Shepherd

UC Law Journal

The Supreme Court's recent decisions in United States v. Booker and Blakely v. Washington, invalidating mandatory criminal sentencing guidelines, could have the unexpected benefit of reducing crime. This Article is the first to use regression analysis to explore the relationship between sentencing guidelines and crime. It shows that adoption of guidelines is associated with significant increases in crime, contrary to the expectations of many of the original supporters of sentencing guidelines.

After developing several economic theories about the relationship between guidelines and crime, the author investigates this relationship empirically using a large, state-level data set. The analysis shows that guidelines …

A Loophole To Repair: "Repair And Maintenance" As A Way Around The Coastal Act's Prohibition Against Seawalls, Jenni Khuu

UC Law Journal

Seawalls and other shoreline protective devices alter natural shoreline conditions and result in dramatic beach loss. For this reason, the California Coastal Act of 1976 promulgated a series of prohibitions and requirements, forbidding coastal development that would require shoreline protection. On January 15, 2004, the California Coastal Commission approved commercial and residential development of promontories. The area, a landslide complex, cannot naturally sustain development. The existing seawall in its current state cannot support proposed development either. Nevertheless, the Coastal Commission approved the project, along with a new seawall to stabilize it. How did the proposal get past the Coastal Act's …

Initiative Funding Through Targeted Taxes: Proposition 63, Mental Health, And The Crossroads Of Direct Democracy, Andrew M. Holmes

UC Law Journal

It took over forty-one years, but on November 2, 2004, President John F. Kennedy's vision of mental health care became a reality in California when 53.8% of the voters of California ratified Proposition 63. Proposition 63 (the Proposition) was criticized, however, the proponents of sought to bring relief to California's mental health system after decades of broken promises. The controversy surrounding Proposition 63 is not whether treatment for the mentally ill is a priority of the State but whether the novel funding structure is abusive.

The Note will first trace the roots of the controversy through a historical analysis of …

Authentically Innocent: Juries And Federal Regulatory Crimes, Jeffrey A. Meyer

UC Law Journal

Few ideals reign more supreme than the jury as conscience of our community and moral arbiter of a criminal defendant's conduct. These ideals are no more than myth for most federal criminal cases today. For a wide range of the most commonly charged federal crimes, judges routinely instruct juries to convict defendants regardless of their moral culpability. This issue arises with regulatory or public order crimes, which include drug trafficking, weapons, immigration, and environmental offenses. They are usually general intent crimes, defined by Congress without identifying precisely what the prosecution must prove a defendant knew or intended. General intent crimes …

Repeat Offenders. Sentencing. Initiative Statute.

Initiatives

Reclassifies “violent” felonies as “Class A,” “serious” felonies as “Class B,” and other felonies as “Class C.” Changes Three Strikes law and other sentence enhancements for repeat offenders by lengthening certain sentences and expanding list of felonies subject to the Three Strikes law. Provides courts with more sentencing options, including shorter sentences, for “third strikers” committing Class C felonies. Authorizes resentencing for certain “third strikers” serving life sentences for non-violent, non-serious felonies. Creates program to educate inmates on the consequences of committing new crimes. Increases parole periods and sentences for parole violations. Summary of estimate by Legislative Analyst and Director …

Repeat Offenders. Sentencing. Initiative Statute.

Initiatives

Reclassifies “violent” felonies as “Class A,” “serious” felonies as “Class B,” and other felonies as “Class C.” Changes Three Strikes law and other sentence enhancements for repeat offenders by lengthening certain sentences and expanding list of felonies subject to the Three Strikes law. Provides courts with more sentencing options, including shorter sentences, for “third strikers” committing specified Class C felonies. Authorizes resentencing for certain “third strikers” serving life sentences for non-violent, non-serious felonies. Creates program to educate inmates on the consequences of committing new crimes. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state …

Water Quality, Safety And Supply. Flood Control. Natural Resource Protection. Park Improvements. Bonds. Initiative Statute.

Initiatives

Authorizes $5,388,000,000 in general obligation bonds, payable from the state’s General Fund, to fund projects relating to safe drinking water, water quality and supply, flood control, waterway and natural resource protection, water pollution and contamination control, state and local park improvements, public access to natural resources, and conservation efforts. Provides funding for emergency drinking water, and exempts such expenditures from public contract and procurement requirements to ensure immediate action for public safety. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: State cost of about $10.5 billion over 30 years to …

Identity Theft And Solicitation. Criminal Gang Activity. Forensic Computer Analysis Fund. Initiative Statute.

Initiatives

Increases criminal penalties for persons convicted of specified identity theft crimes. Adds crimes involving personal identification to enumerated list of criminal gang activities. Expands definition of personal identifying information, and requires prison terms and increased fines for acquisition of such information with intent to defraud. Outlaws electronic solicitation of identifying information through misrepresentation (phishing). Expands venue in identity theft prosecutions to include county where victim resided. Creates fund to pay for analysis of electronic evidence in criminal investigations, financed through criminal fines. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: …