Digital Commons Network^™

Reconstructing Cumis: What The California Legislature Got Wrong About California Civil Code Section 2860 And How To Fix It, Rich Marotti

UC Law Journal

In 1984, California courts leapt to the forefront of protecting consumers of insurance with the decision in San Diego Navy Federal Credit Union v. Cumis Insurance Society, Inc. Several years later, the California General Assembly enacted California Civil Code section 2860. The statute was presumably established in response to the expansive Cumis decision. However, the bill containing the language that ultimately became section 2860 received little to no public comment, nor does it appear to have received much scrutiny from the assembly. It amounted to a backroom deal among special interest groups that was revealed only a few days before …

V.S. Naipaul And The 1946 Trinidad General Election, Aaron Eastley

Faculty Publications

On 1 July 1946 the first election featuring universal adult suffrage was held in Trinidad. As reported in the island’s leading newspaper of the day, the Trinidad Guardian, the “privilege of a lowered franchise” expanded the electorate nearly tenfold, from approximately 30,000 to 259,000 eligible voters (“Momentous”). This was a precipitous change, especially in a colony where voting even on a limited scale had only been instituted a couple of decades before (1925), in an era when lingering doubts about the qualifications of nonwhites and women had motivated the institution of property, literacy, and age requirements that disenfranchised all but …

Originalism And The "Challenge Of Change": Abduced-Principle Originalism And Other Mechanisms By Which Originalism Sufficiently Accommodates Changed Social Conditions, Lee J. Strang

UC Law Journal

One of the most persistent criticisms of originalism-and also one of the most powerful-is that originalism is not a viable interpretative methodology because of the tremendous technological, social, cultural, religious, and moral change that has occurred since the Constitution's original meaning was created. The Constitution's original meaning arose in contexts so dramatically different from our own, the criticism goes, that a Constitution whose meaning was limited by those contexts would be unworkable in today's world.

This form of criticism of originalism - the challenge of changeis pervasive. In this Article, I argue that originalism has, within its analytical quiver, six …

The Good Faith Exception As Applied To Illegal Predicate Searches: A Free Pass To Institutional Ignorance, Andrew Z. Lipson

UC Law Journal

The Supreme Court recently clarified the scope of the good faith exception to the exclusionary rule in Herring v. United States. The Court's decision, however, did not address whether the good faith exception should apply to illegal predicate searches. Illegal predicate searches are searches where a police officer misapplies the law and conducts an illegal search that yields evidence later used to obtain a search warrant. There is currently a circuit split on the application of the good faith exception to situations where there has been an illegal predicate search. Some circuits have held that even though the searching officer …

Passwords And Keys Under The Dmca: A Call For Clarification From The Courts Or Congress, Lindsey M. Shinn

UC Law Journal

While the DMCA was passed to protect copyrighted content in the digital age, the cases interpreting the statutory terms "circumvention" and "authorization" are inconsistent. The courts have staked out two poles on what does and does not constitute circumvention under the DMCA: aftermarket parts that run items like garage doors do not circumvent, but code that allows an unanticipated device to play a CD is a circumvention. This Note explores the surprising consequences of carrying the reasoning of each of these lines of cases to their logical conclusions. The most unsettled area naturally falls in the middle-in the cases of …

Losing Faith: The Supreme Court And The Abandonment Of The Adjudicatory Process, Erwin Chemerinsky

UC Law Journal

Increasingly the courthouse doors across the United States are being closed to litigants in both criminal and civil cases. This trend reflects an increasing loss of faith in, and abandonment of, the adjudicatory process. Painting with broad strokes, and looking at the criminal justice system, the civil justice system, and the War on Terror, it seems that we are no longer a society living up to the constitutional axioms upon which our country is based. By giving up these notions of process, we are giving up something very fundamental to our constitutional birthright. The late Justice William Douglas said we …

Heller, High Water (Mark)? Lower Courts And The New Right To Keep And Bear Arms, Brannon P. Denning, Glenn H. Reynolds

UC Law Journal

In the wake of District of Columbia v. Heller, lower courts have entertained a number of challenges to myriad federal, state, and local gun-control laws. Not surprisingly, given language in Heller seemingly intended to forestall some claims, courts have not, to date, invalidated federal or state gun-control laws that fall short of D.C.'s near-prohibition on private gun ownership. While the lower court cases to date confirm our earlier predictions that lower courts would not run wild with Heller, it is not clear that Heller was a purely symbolic victory either. Governments now find themselves legislating in the shadow of Heller; …

Second Amendment Limitations And Criminological Considerations, Don B. Kates, Clayton E. Cramer

UC Law Journal

Criminological studies which identify perpetrator characteristics are unanimous in finding that almost all murderers fall into three categories: (i) the mentally disturbed, and/or (2) adults with criminal records, and/or (3) juveniles with juvenile records. Many murder perpetrators exhibit two or all three characteristics. Thus laws such as the ones Heller invalidated that seek to disarm the general population have minimal value and deprive victims of the means of self-defense.

The Second Amendment does not guarantee: (i) weapons of indiscriminate destructiveness such as cannons, (2) any right of violent felons or of other felons whom legislatures reasonably identify as likely to …

Four Exceptions In Search Of A Theory: District Of Columbia V. Heller And Judicial Ipse Dixit, Carlton F. W. Larson

UC Law Journal

This Symposium Essay examines the Supreme Court's Second Amendment decision in District of Columbia v. Heller. Specifically, the Essay examines four exceptions to the right to bear arms that the Court specifically approved: (i) laws disarming felons, (2) laws disarming the mentally ill, (3) laws prohibiting the possession of firearms in sensitive places, and (4) laws regulating the commercial sale of firearms. The Essay argues that these exceptions cannot be completely justified on originalist grounds, at least under the form of originalism that the Court is likely to employ. The Court's approach seems to require specific historical justifications for the …

Heller And Nonlethal Weapons, Craig S. Lerner, Nelson Lund

UC Law Journal

Two important opinions in the past decade, both written by Justice Antonin Scalia, have sought to apply originalist jurisprudence to constitutional issues raised by technologies that were unknown at the time of the founding. In Kyllo v. United States, the Court held that using sense-enhancing technology to obtain information about the interior of a home, even without a physical intrusion, constitutes a Fourth Amendment search, at least if the technology is not "in general public use." This rule appropriately preserves the privacy that could only have been violated by a trespass in 1791. In District of Columbia v. Heller, the …

Second Amendment Decision Rules, Calvin Massey

UC Law Journal

In District of Columbia v. Heller, the Supreme Court determined that the Second Amendment protects an individual right to bear arms for self-defense. That right is a constitutional operative rule: We know it exists but we have little idea of its boundaries. Constitutional decision rules, whether they be tiered scrutiny, multi-factor analytical tests, categorical rules, or something else, function to enable courts, lawyers, and citizens to understand the dimensions of any given right. Because the Court has announced a new constitutional operative rule without providing much guidance concerning the applicable constitutional decision rules, this Essay is an effort to identify …

The Bill Of Rights And The States Revisited After Heller, Michael Kent Curtis

UC Law Journal

In this Article, Professor Curtis discusses textual and historical support for application of the Bill of Rights to the States, the mess the Supreme Court made of application in its early cases, and the implication of application for the right to bear arms. Finally, he notes the likely irony of application of the Second Amendment to the states by "conservative" Justices. Application will be ironic in light of harsh past criticism of application by so many who characterized themselves as "conservative." After application, the emerging and very difficult issue will be the deference the Court gives to state and local …

Why Didn't The Supreme Court Take My Advice In The Heller Case - Some Speculative Responses To An Egocentric Question, Sanford Levinson

UC Law Journal

There were a number of argumentative routes by which the Supreme Court could have reached the same basic result as was announced in the Heller case, i.e., the invalidation of the de facto prohibition of private handgun ownership in the District of Columbia. One of them was adoption of the approach suggested by Solicitor General Paul Clement (though he explicitly suggested remanding the case back to the Court of Appeals for the District of Columbia for consideration in light of a somewhat different standard of review, that could have easily led to the same outcome). The brief that he submitted …

Collective Confusion: Flsa Collective Actions, Rule 23 Class Actions, And The Rules Enabling Act, Daniel C. Lopez

UC Law Journal

This Note explores the procedural contours of hybrid actions: Combined state law optout Rule 23 class actions and Fair Labor Standards Act opt-in collective actions in one lawsuit. The Note contains four parts. Part I examines the history of the FLSA, the Portal-to-Portal Act of 1947, and Rule 23. Part II provides a brief procedural guide to the collective action and class action certification processes. Part III surveys published federal court cases and ultimately posits that hybrid actions violate the Rules Enabling Act. Finally, Part IV urges Congress to abolish collective actions by repealing § 2I6(b) of the FLSA. In …

Rethinking Consideration In The Electronic Age, Robert A. Hillman, Maureen A. O'Rourke

UC Law Journal

Our fast-paced age of electronic agreements that ostensibly govern transactions as diverse as downloading software, ordering goods, and engaging in collaborative development projects raises questions regarding the suitability of contract law as the appropriate legal framework. While this question arises in many settings, we focus here on the free and open source software (FOSS) movement because of the maturity and success of its model and the ubiquity of its software. We explore in particular whether open source licenses are supported by consideration, and argue that they are, and that open source licenses are contracts. We further argue that a contractual …

Choice Of Law In Cross-Border Torts: Why Plaintiffs Win And Should, Symeon C. Symeonides

UC Law Journal

This Article is the first comprehensive study of how American courts have resolved conflicts of laws arising from cross-border torts over the last four decades. This period coincides with the confluence of two independent forces: (i) a dramatic increase in the frequency and complexity of cross-border torts generated by the spectacular expansion of cross-border activity now known as globalization; and (2) the advent of the American choice-of-law revolution, which succeeded in demolishing the old regime in forty-two U.S. jurisdictions, but failed to replace it with anything resembling a unified system.

One of the findings of the Article is that, despite …

Transparency, 2009, Eugene R. Fidell

UC Law Journal

No abstract provided.

Covenants Not To Sue Provide Less Immunity In A Post-Medimmune World, Edo Royker

UC Law Journal

The primary focus of this Note is to address the impact of the totality of circumstances test, as now adopted by the Federal Circuit, on covenants not to sue. Under the old reasonable apprehension test, promises not to sue were given greater weight than under the new totality of the circumstances test. Part I of this Note will address the new totality of the circumstances test under Medlmmune and SanDisk. Part II of this Note will begin by analyzing the application of promises not to sue prior to the Medlmmune and SanDisk decisions and then compare the weight given to …

Hardware Accelerated Sequence Alignment With Traceback, Scott Lloyd, Quinn O. Snell

Faculty Publications

Biological sequence alignment is an essential tool used in molecular biology and biomedical applications. The growing volume of genetic data and the complexity of sequence alignment present a challenge in obtaining alignment results in a timely manner. Known methods to accelerate alignment on reconfigurable hardware only address sequence comparison, limit the sequence length, or exhibit memory and I/O bottlenecks. A space-efficient, global sequence alignment algorithm and architecture is presented that accelerates the forward scan and traceback in hardware without memory and I/O limitations. With 256 processing elements in FPGA technology, a performance gain over 300 times that of a desktop …

School-Based Mentoring For At-Risk Elementary Students, Shauna Valentine, Gary Wall, Paul Caldarella, Lynnette Christensen, K. Richard Young, Allen Gurney

Faculty Publications

Advantages of School-based Mentoring: Less Costly; Identify More Children via the School Context; School Resources Staff Administration; More Convenient for Volunteers; Time Commitment; Mentors Feel Safer; Establish Community Support within school.

Intra-Speaker Variability In Palatometric Measures Of Consonant Articulation, Christopher Dromey, Marybeth Sanders

Faculty Publications

Electropalatometry is a useful clinical and research tool for measuring linguapalatal contact. The goal of this study was to examine intra-speaker variability in performance. Twenty individuals spoke VCV nonsense words using a schwa in the initial position, the 15 palatal consonants, and three corner vowels, /ɑ/, /i/, /u/. A variability index was created to examine speaker consistency.
Different aspects of articulation (i.e. place, manner, voicing, coarticulation) were compared. Significant differences for variability were found for place of articulation in the /i/ vowel context and for manner of articulation in the /ɑ/ vowel context. Also for the /ɑ/ vowel, significant differences …

Spin Dynamics For Wave Packets In Rashba Systems, Bailey C. Hsu, Jean F. Van Huele

Faculty Publications

We explore spin dynamics for localized wave packets in Rashba systems using spin quantum propagators. We derive exact (one-dimensional) and approximate (two-dimensional) analytic expressions for the propagators and apply them to Gaussian wave packets to obtain localized solutions of systems manifesting Rashba interactions. We observe and describe the evolution of the wave packets. We identify characteristic structures in the wave-packet evolution and look for features with specific spintronics applications such as spin separation and spin accumulation. We discuss the relative importance of those features as a function of the Rashba coupling strength α and the width of the wave packet …

Dna Replication In The Human Malaria Parasite And Potential For Novel Drug Development, J Li

School of Biomedical Sciences

Rather than simply "itemising" the replication steps and the proteins involved, replication is tackled from a novel perspective. The book provides logical groupings of processes based upon biochemical similarities.

Farm Productivity And Efficiency In Rural Bangladesh: The Role Of Education Revisited, Mn Asadullah, S Rahman

School of Geography, Earth and Environmental Sciences

This article reassesses the debate over the role of education in farm production in Bangladesh using a large dataset on rice producing households from 141 villages. Average and stochastic production frontier functions are estimated to ascertain the effect of education on productivity and efficiency. A full set of proxies for farm education stock variables are incorporated to investigate the 'internal' as well as 'external' returns to education. The external effect is investigated in the context of rural neighbourhoods. Our analysis reveals that in addition to raising rice productivity and boosting potential output, household education significantly reduces production inefficiencies. However, we …

Ethical Challenges And Opportunities At The Edge: Incorporating Spirituality And Religion Into Psychotherapy, John C. Gonsiorek, P. Scott Richards, Kenneth I. Pargament, Mark R. Mcminn

Faculty Publications

Incorporating spirituality and religion into psychotherapy has been controversial, but recent contri- butions have argued the importance and provided foundations for doing so. Discussions of ethical challenges in this process are emerging, and this contribution discusses several preliminary issues, relying on the Resolution on Religious, Religion-Based and/or Religion-Derived Prejudice adopted by the American Psychological Association in 2007, as guidance when used with the American Psychological Association’s (2002) Ethical Principles of Psychologists and Code of Conduct. Specifically, this discussion of preliminary challenges addresses competence, bias, maintaining traditions and standards of psychology, and integrity in labeling services for reimbursement. Commentators deepen the …

Religion And Academic Achievement Among Adolescents, Benjamin Mckune, John P. Hoffmann

Faculty Publications

In this article, we examine the association between religiosity and academic achievement among adolescents. Recent research demonstrates a positive association between religiosity and academic success. However, some studies show that this association is due to family and community factors; for example, variation in levels of family capital among religious affiliates could explain it. Yet whether religious factors affect academic achievement among adolescents might also be due to the concordance or discordance of religiosity between parents and their children. Using data for two years from the National Longitudinal Study of Adolescent Health, we examine the associationbetween adolescents‘ religiosity, parents‘ religiosity, and …

2009 Admissions Brochure, New York Law School

NYLS Bulletins and Catalogs

No abstract provided.

Enhancing Cultural Competence In Financial Counseling And Planning: Understanding Why Families Make Religious Contributions, Loren D. Marks, David C. Dollahite, Jeffrey P. Dew

Faculty Publications

Some highly religious individuals contribute a relatively high percent of their income (e.g., 10-15% or more) to their faith communities. This study used a racially and religiously diverse sample and employed qualitative methods to investigate why these individuals give. Five themes emerged from the grounded-theory analysis. Four themes concerned why families gave: a) out of a sense of obedience/duty, b) to express thanksgiving and feel joy, c) because they feel that it is a wise investment, and d) to promote social justice and charity. The final theme that emerged was that they give despite their financial challenges. Based on these …