Digital Commons Network^™

"Good" Science Gone Bad: How The Criminal Justice System Can Redress The Impact Of Flawed Forensics, Jessica D. Gable, Margaret D. Wilkinson

UC Law Journal

What can the criminal justice system do when "good" science goes bad? This article provides an answer to that question in three parts. First, this article looks at the inability of certain fields of forensic science to produce reliable results. Second, it discusses problems with the current methods of challenging convictions based on unreliable science. Finally, it proposes a new framework to better enable prisoners to seek review of such convictions. What this article does not do is propose ways to prevent wrongful convictions in the future. We recognize that many issues, including the standards governing the admissibility of forensic …

Inferences, Arguments, And Second Generation Forensic Evidence, Erin Murphy

UC Law Journal

Advances in scientific and technological evidence have resulted in a new, "second generation" of forensic proof characterized by its high degree of probativeness and mechanical sophistication. Methods such as DNA typing are already in widespread use in the criminal justice system, and law enforcement may soon have available other biometric techniques, global locators, or even reliable lie detection systems.

The promise and allure of such forms of forensic evidence lie in its high degree of accuracy. But the perception that such evidence is infallible has resulted in an increasing number of instances in which the government has sought to bolster …

Signature Identification In The Light Of Science And Experience, Roger C. Park

UC Law Journal

The Daubert case encourages judges to ask whether forensic identification expertise is valid, not merely whether it is accepted among practitioners. The example of DNA has shown what real science can do, and has highlighted the shortcomings of other forms of forensic science. The combined effect of Daubert and DNA has contributed to skepticism about forensic identification techniques. This skepticism may lead to exclusion of evidence or to procedural limits aimed at making the expertise more trustworthy or preventing it from having undue weight. I will discuss these two alternatives in the context of the specific forensic problem of signature …

Conceptual Hurdles To The Application Of Atkins V. Virgina, Lois A. Weithorn

UC Law Journal

In its 2002 decision in Atkins v. Virginia, the United States Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment precludes the execution of "mentally retarded offender[s]." Despite the apparent "brightline" clarity of an absolute ban on the execution of mentally retarded offenders, the determination of which offenders fall within the protected group is deceivingly complex. The meanings of the concepts of "mental retardation," "intelligence," and "adaptive behavior" are-like the standards of decency guiding the Court-continually evolving, and are subjects of ongoing reevaluation and debate. Given what is at stake in Atkins assessments, lawmakers, jurists, practitioners, …

The Myth Of "Lucky" Patent Verdicts: Improving The Quality Of Appellate Review By Incorporating Fuzzy Logic In Jury Verdicts, Michael T. Nguyen

UC Law Journal

Fuzzy logic, a relatively new mathematical concept, has emerged over the past few decades as an effective tool to model complexity and uncertainty. In a nutshell, fuzzy logic recognizes that truth is not always black or white, but rather, truth can be measured in shades of gray. Patents, because they rely on language to claim inventions, are fuzzy legal concepts. Fuzzy logic may help to simplify the jurors' comprehension of complex real-world problems in patent law.

In this Note, I propose a "fuzzy" special verdict form and procedure for "defuzzifying" the verdict that would allow the jury the freedom to …

The Matter Of Fit: The Law Of Discrimination And The Science Of Implicit Bias, David L. Faigman, Nilanjana Dasgupta, Cecilia L. Ridgeway

UC Law Journal

This Article examines the "fit" between the law of discrimination and the science of implicit bias, including consideration of the legal standards that apply and a broad overview of the sociological and psychological literatures that are relevant to those standards. The Authors first set forth the legal framework within which the psychological and sociological research literatures must be considered. Although the legal standard is not entirely unambiguous, scientific research on implicit bias appears relevant to the basic empirical issues put in issue by the law. The Authors then review the general research literature on the phenomenon of "implicit biases" in …

Discrimination-Reducing Measures At The Relational Level, Tristin K. Green, Alexandra Kalev

UC Law Journal

Social scientists have shown that bias and stereotypes are executed and reinforced not only in moments of decision making, like hiring or promotion, but also in day-to-day interactions and social relations (or lack thereof) at work. The Authors discuss existing measures for reducing employment discrimination as focusing too narrowly at the individual level of discrimination. They argue that discrimination-reducing measures taken by employers should be expanded to address the relational sources of discrimination. The Authors review research showing that employers can reduce relational sources of discrimination and workplace inequality by changing the context of workplace relations and interactions from stereotype …

Old Problem, New Tactic: Making The Case For Legislation To Combat Employment Discrimination Based On Family Caregiver Status, Noreen Farrell, Genevieve Guertin

UC Law Journal

Employment discrimination against employees based on their status as parents or family caregivers occurs at an alarming rate in this country, and is hardly a new phenomenon. Family Responsibilities Discrimination (FRD) disproportionately impacts working mothers, but advocates have begun to look beyond traditional gender discrimination and family leave theories of liability to strategies based on legislation expressly prohibiting discrimination based on parental or family caregiver status. This Article examines FRD legislation passed or proposed in recent years in the context of criticisms of this strategy by Professor Peggie Smith, who addressed the issue in her article Parental Status Employment Discrimination: …

Armed Standoffs And The Warrant Requirement, Edward H. Arens

UC Law Journal

The Fourth Amendment, as decided by the Supreme Court in Payton v. New York, forbids police from arresting suspects in their homes without a warrant or a compelling excuse. Applying this principle to standoffs between police and suspects who have barricaded themselves inside their homes, however, presents significant interpretive problems. The foremost difficulty is that it is not clear when the Fourth Amendment even applies to police standoffs. Courts disagree on whether police seize barricaded suspects simply by surrounding a house, or whether the suspect remains free until he or she surrenders or is physically subdued. Second, Payton excuses a …

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 …

Conceptualizing Complicity In Alien Tort Cases, Chimene I. Keitner

UC Law Journal

The Alien Tort Statute (ATS) indisputably brings international law into U.S. courts. The question is: how much international law? The United States Supreme Court was recently precluded from addressing this question in cases involving alleged corporate complicity in the crime of apartheid because four judges recused themselves, leaving the Court without a quorum. The answer to this question can determine the outcome of cases brought against corporations for their alleged complicity in international law violations perpetrated by foreign governments. It will also shape the extent to which U.S. courts in ATS cases continue to interpret and apply international law, thereby …

Distributive Injustice And Private Law, Aditi Bagchi

UC Law Journal

Private law recognizes claims between individuals. Legal economists have argued that claims by the socially disadvantaged against the better off are best dealt with outside private law, primarily through tax and transfer. Most theorists of private law similarly oppose considerations of distributive justice in contract and tort because they have assumed that this would confer a windfall upon poor plaintiffs, and penalize wealthy defendants beyond their fair share. Private law theorists resist this moral arbitrariness; individual legal liability is supposed to reflect individual responsibility, and matters of distributive justice are a collective responsibility.

In this Article, I argue that even …

Continuing Abuse Of The Hatch-Waxman Act By Pharmaceutical Patent Holders And The Failure Of The 2003 Amendments, Mathew Avery

UC Law Journal

The Hatch-Waxman Act of 1984 established a system whereby generic manufacturers can seek to market generic equivalents of a pioneer's patented drug prior to the patent's expiry. But the original Act also contained provisions that were exploited by patent holders to delay generic competition and thereby extend their monopoly sales. Congress amended the Hatch-Waxman Act to address these abusive practices with the Medicare Modernization Act of 2003. This Note analyzes how the 2003 amendments failed to remedy exploitation of the Hatch-Waxman Act by pharmaceutical patent holders who use reverse payments and authorized generics to manipulate the 180-day market exclusivity given …

Disney Goes Goofy: Agency, Delegation, And Corporate Governance, Marc I. Steinberg, Matthew D. Bivona

UC Law Journal

In the wake of the corporate debacles that have occurred in the last decade, there has been an increasing legislative and judicial focus on the reform of corporate governance standards. Such reforms, including the Sarbanes-Oxley Act, sing the praises of independent directors in effectuating meaningful corporate governance. The Delaware courts as well have emphasized the importance of independent directors in the corporate governance framework.

The Delaware Supreme Court's decision in Disney seems to be a reaffirmation of the business judgment rule as applied to corporate directors; however, the court's highly-publicized decision ignores a crucial component of the case: the Delaware …

Introduction, Hastings Law Journal

UC Law Journal

No abstract provided.

Creating Children With Disabilities: Parental Tort Liability For Preimplantation Genetic Interventions, Kirsten Rabe Smolensky

UC Law Journal

Using preimplantation genetic diagnosis (PGD), parents can now screen embryos for genetic traits such as deafness and achondroplasia (dwarfism). Studies show that some parents intentionally choose embryos with disabilities because that genetic trait runs in the family. This recent trend raises the important legal question of whether a child can sue his parents in tort for selecting or engineering disabling genetic traits.

This Article suggests that children both can and should be able to successfully sue parents who engage in certain direct genetic interventions. First, tort law should protect a child's moral right to an open future where parents' preimplantation …

Intentional Diminishment, The Non-Identity Problem, And Legal Liability, I. Glenn Cohen

UC Law Journal

This Article, lying at the intersection of law and bioethics, examines whether it is wrongful to use assisted reproductive technology to intentionally create disabled children, and whether legal liability should attach to such acts. In particular, this Article considers the way these issues are intertwined with what philosophers have called the "Non-Identity Problem," the idea that so long as a resulting child will have a life worth living the child cannot be harmed by being brought into existence, because even an impoverished life is better than not existing at all.

In her article in this Issue, Kirsten Smolensky suggests that …

Duty To The Unborn: A Response To The Smolensky, Jaime King

UC Law Journal

Advances in assisted reproductive technology and genetic testing continue to offer parents a plethora of new reproductive choices. As a result, we now face significant moral and legal challenges regarding how to balance the interests of parents, children born through the procedure, and society as a whole. This Essay analyzes Professor Kirsten Smolensky's argument in favor of permitting children the right to sue their parents in tort law for manipulating their DNA prior to implantation to produce a disabling trait. While Smolensky's basic argument is sound, a more encompassing standard would create a duty to potential offspring to act as …

Parental Tort Liability For Preimplantation Genetic Interventions: Technological Harms, The Social Model Of Disability, And Questions Of Identity, Kirsten Rabe Smolensky

UC Law Journal

Professors Glenn Cohen, Jaime King, and Alicia Ouellette each wrote a thoughtful commentary in response to the article, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions. This short Essay is a reply to several broad themes that appear in these commentaries. It both clarifies several points made in the original article and makes a few additional arguments in favor of parental tort liability. In particular, this Essay addresses calls for regulation and provider liability, assesses additional costs and benefits associated with preimplantation genetic interventions, reevaluates the original proposal in a way more sensitive to persons with disabilities, …

Prosecuting Elder Abuse: Setting The Gold Standard In The Golden State, Arthur Meirson

UC Law Journal

This Note proposes amending California's elder abuse law. Currently, California Penal Code sections 368(b) and (c) allow the prosecution of any person who willfully causes or permits a person they know to be an elder or dependent adult "to suffer, or inflicts thereon unjustifiable physical pain or mental suffering." The failing of this law is its focus on the subjective experience of the elder or dependent adult victim. Because the law only allows punishment where the victim suffers or experiences unjustifiable physical pain or mental suffering, there are numerous circumstances that allow a perpetrator of abuse to escape prosecution. These …

The Forgotten Frontier - Healthcare For Transgender Detainees In Immigration And Customs Enforcement Detention, Dana O'Day-Senior

UC Law Journal

a challenge for anyone, but for transgender individuals, the lack of healthcare policy specifically addressing the healthcare needs of transgender individuals can mean that ICE detention is hazardous to one's health. Many researchers have studied the challenges faced by transgender individuals in the prison setting, and many researchers have examined the problems with healthcare access and delivery in ICE detention facilities. However, so far no one has bridged the gap between the two areas of research and looked at the specific challenges ICE detention poses for healthcare for transgender individuals.

This Note attempts to bridge that gap by focusing into …

Sophistication, Bridging The Gap, And The Likelihood Of Confusion: An Empirical And Theoretical Analysis, Glenn L. Christensen, Eric D. Derosia, Thomas R. Lee

Faculty Publications

Recent commentary has rightly lamented the uncertain state of the multifactor test for trademark infringement. “This heuristic device is the fulcrum of American trademark law,” yet the courts are in substantial disagreement as to which factors are relevant to an evaluation of the likelihood of confusion. The doctrinal divide is substantial: “Some circuits claim to weigh heavily under certain factors what other circuits claim to ignore, and nearly every factor or combination of factors has been called the ‘most important’ by one court or another.”

Trademarks, Consumer Psychology, And The Sophisticated Consumer, Glenn L. Christensen, Eric D. Derosia, Thomas R. Lee

Faculty Publications

Trademark law rests on an amorphous foundation. The scope of protection afforded to the trademark holder turns on the psychology and behavior of the "ordinary" consumer "under the normally prevalent conditions of the market and giving the attention such purchasers usually give in buying that class of goods." In trademark law, "everything hinges upon whether there is a likelihood of confusion in the mind of an appreciable number of 'reasonably prudent' buyers." Where the ordinary consumer is deemed sufficiently "sophisticated" to discern differences between two competing marks, the law forecloses protection for the senior trademark.

Enhancing Special Educators' Knowledge And Understanding Of Hiv/Aids, Mary Anne Prater, Nancy M. Sileo, Thomas W. Sileo

Faculty Publications

HIV/AIDS continues to spread among children, youth, and young adults across all racial, ethnic, and cultural populations, including those with disabilities. This article considers information on HIV/AIDS such as individuals' health-risk behaviors, environmental circumstances, and perceptions that may contribute to HIV-infection; how disability characteristics, and cultural traits and values impact school-based HIV/AIDS prevention programs; and, culturally competent instructional considerations that acknowledge these variables.

Systems Biology Meets Stress Ecology: Linking Molecular And Organismal Stress Responses In Daphnia Magna, L-H Heckmann, Rm Sibly, R Connon, Hl Hooper, Et Al

School of Biomedical Sciences

BACKGROUND: Ibuprofen and other nonsteroidal anti-inflammatory drugs have been designed to interrupt eicosanoid metabolism in mammals, but little is known of how they affect nontarget organisms. Here we report a systems biology study that simultaneously describes the transcriptomic and phenotypic stress responses of the model crustacean Daphnia magna after exposure to ibuprofen. RESULTS: Our findings reveal intriguing similarities in the mode of action of ibuprofen between vertebrates and invertebrates, and they suggest that ibuprofen has a targeted impact on reproduction at the molecular, organismal, and population level in daphnids. Microarray expression and temporal real-time quantitative PCR profiles of key genes …

Systems Biology Meets Stress Ecology:: Linking Molecular And Organismal Stress Responses In Daphnia Magna, L-H Heckmann, Rm Sibly, R Connon, Hl Hooper, Th Hutchinson, Sj Maund, Cj Hill, A Bouetard, A Callaghan

School of Geography, Earth and Environmental Sciences

No abstract provided.

Correlation Of Electron Donor Concentrations In Sediments With Sediment Properties: New Providence, Iowa, Bijesh Maharjan

Theses and Dissertations

The concentrations of electron donors in aquifer sediments are important in understanding the fate and transport of redox-sensitive constituents in ground water, such as nitrate. In this study, 50 sediment samples were collected from below the water table from 11 boreholes at the US Geological Survey Agricultural Chemicals Transport site near New Providence, Iowa. All samples were analyzed for gravel, sand (coarse, medium, and fine), silt, clay, inorganic carbon contents and for the following electron donors: organic carbon, ferrous iron, and inorganic sulfide. A subset of sediment samples was analyzed for organic sulfur, but all of the 14 samples were …

Model-Centered Instruction, The Design, And The Designer, Andrew S. Gibbons Iii

Faculty Publications

A model of instruction described by Wenger (1987) identifies three elements that are active during instruction: the mental model the instructor wishes to share with the learner, the external experience used to communicate the mental model, and the evolving mental model of the learner. Gibbons (2003a), writing in response to Seel (2003), noted this three-part description as a bridge concept relating learning and instruction. This view has important practical implications for designers of instruction. For example, Gibbons and Rogers (in press) propose that there exists a natural layered architecture within instructional designs that corresponds with instructional functions. Among these layers …