Law Commons^™

Some Bargain: How Bankruptcy Courts May Now Require A Debtor To Relinquish Expectations Of Privacy As A Condition Of The Bankruptcy Bargain, Jennifer Taylor

UC Law Journal

There was a time when incurring debt and becoming insolvent was considered a crime. Although those days are long gone, discharge of debt in bankruptcy continues to be premised upon the debtor's cooperation in the "bankruptcy bargain." Honesty and disclosure of certain relevant information is required in exchange for a "fresh start." This Note explores the level of scrutiny that an individual debtor must submit to as part of the bankruptcy bargain by asking and answering the Fourth Amendment question: What is society "prepared to recognize as reasonable?" Contrary to the recent opinion of one bankruptcy court that went so …

Harry Blackmun, Independence And Path Dependence, Linda Greenhouse

UC Law Journal

United States Supreme Court Justice Harry A. Blackmun was profoundly affected by reactions to his opinion in Roe v. Wade. This Lecture argues that Justice Blackmun came to identify with that decision in an intensely personal way that shaped his future jurisprudence. In defending and embracing his legacy as author of Roe v. Wade, Justice Blackmun created his legacy.

Borrowing the concept of "path dependence" from the sciences- which, reduced to its core, asserts that eventual outcomes depend on initial conditions-this Lecture explores how writing Roe v. Wade and being personally identified with it impacted Justice Blackmun's career. In particular, …

The Pimple On Adonis's Nose: A Dialogue On The Concept Of Merit In The Affirmative Action Debate, Robert Paul Wolff, Tobias Barrington Wolff

UC Law Journal

Efforts at progressive educational reform in general, and affirmative action in particular, frequently encounter a rhetorically powerful objection: Merit. The story of "merit" proclaims that highachieving applicants -those who have already made effective use of educational opportunities in the past and demonstrated a likelihood of being able to do so in the future-enjoy a morally superior claim in the distribution of scarce educational resources. Past achievement, in other words, "entitles" an applicant to a superior education. This moral framework of "merit" serves as a constant counterpoint in debates over affirmative action. It provides the first rejoinder to any suggestion that …

The Accelerating Degradation Of American Criminal Codes, Paul H. Robinson, Michael T. Cahill

UC Law Journal

This Article addresses the ongoing-and, indeed, accelerating process of sporadic, piecemeal, and unnecessary legislation leading to increasing inconsistencies and irrationalities in American criminal law. After a wave of modernization in the I960s and 1970s, the past generation has not witnessed further advances, but rather a serious and growing degradation of most criminal codes.

This Article offers several insights regarding criminal code degradation. First, it provides specific and concrete examples of degradation and its harmful effects. Second, drawing on their experiences as participants in the recent reform efforts of Illinois and Kentucky, the authors offer an insider's view of how the …

Recusal And The Supreme Court, Debra Lyn Bassett

UC Law Journal

From Laird v. Tatum to Bush v. Gore, the refusal of some Supreme Court Justices to recuse themselves in controversial cases has caused reactions ranging from confusion to disgust. The latest "duck hunting" recusal controversy, and the Court's seemingly callous response to the public outcry, seemed to suggest a deliberate indifference to the recusal standard. This Article examines the recusal provisions applicable to the Supreme Court. There is little doubt that Congress drafted the federal recusal statute broadly and intended to encompass Supreme Court Justices within the statute's reach. However, interesting questions surround recusal in the Supreme Court due to …

Persuasion, Transparency, And Government Speech, Gia B. Lee

UC Law Journal

Recent news reports indicate that federal, state, and local government entities and officials engage in pseudonymous or anonymous communications more often than we might imagine. Current trends, including advances in technology and the blurring of the public/private distinction, suggest that those types of communications will become only more frequent. Yet thus far there has been no sustained legal or constitutional analysis of such communications. This Article addresses that omission. It examines the issue of veiled government communications by drawing upon not only constitutional theory and case law but also social science research that explains how governments persuade and how citizens …

Guest Worker Policy: A Critical Analysis Of President Bush's Proposed Reform, Camille J. Bosworth

UC Law Journal

The Note argues that the agricultural guest-worker program in the United States needs reform. U.S. President George W. Bush has talked publicly about the need for change since he first assumed office in 2ooo. The events of September II, 2001, however, brought what appeared to be promising discussions between President Bush and Mexican President Vicente Fox to an abrupt halt. Now, nearly five years later, meaningful changes are yet to be seen. Focusing on Mexican workers, the Note traces the historical roots of guest worker programs in the United States, analyzes the strengths and shortcomings of President Bush's proposal, and …

A Proposed Antitrust Approach To Buyers' Competitive Conduct, Thomas A. Piraino Jr.

UC Law Journal

This Article proposes a new means of regulating buyers' exercise of market power under the federal antitrust laws. The federal courts urgently need to adopt such an approach, because buyers have increased their market power in many domestic businesses. Wal-Mart's power to influence competition in retail markets is only one example of the increased market power of buyers in the United States economy. The courts' current approach to buyers' competitive conduct is confusing and inconsistent. As a result, business executives are uncertain as to the boundaries of legality for various types of buyer conduct.

This Article describes a comprehensive means …

Progressive Consumption Taxes, Mitchell L. Engler

UC Law Journal

Recent intellectual and political forces have moved the consumption tax to the forefront of tax policy debate. Because traditional flat-rate consumption taxes, like the VAT, raise serious distributional concerns, tax scholars have responded with suggestions of innovative progressive consumption taxes. Two such proposed taxes-the Hybrid Approach and the X-tax-were independently analyzed in a recent symposium on fundamental tax reform. These two proposals contain striking similarities, as both would tax individuals at progressive rates on their wages with a separate tax on consumption less wages. However, there are significant differences. The Hybrid Approach would impose an individual tax on consumption less …

A Hard Look Or A Blind Eye: Administrative Law And Military Deference, Jonathan Masur

UC Law Journal

The subject of judicial deference to the military in time of war has spawned a rich and variegated literature. The vast majority of these articles have focused upon what one might term "legal deference," or courts' willingness to construe the military's statutory and constitutional authority broadly, while simultaneously narrowing the legal restraints upon its actions. This Article adopts a divergent approach, taking as its point of departure the argument that the modem wartime jurisprudence is defined as much by the manner in which courts treat the executive's factual assertions as the fashion in which those courts have construed the legal …

The "Magic Words" Of 554: A New Test For Formal Adjudication Under The Administative Procedure Act, John F. Stanley

UC Law Journal

Section 554 of the Administrative Procedure Act (APA) requires federal agencies to provide formal, trial-like procedures when conducting a formal adjudication. However, the language of § 554 states that an adjudication is formal when a statute requires the agency to conduct a hearing "on the record." Where a statute requires the agency to conduct a hearing, without the "on the record" requirement, can § 554 still apply? Two approaches have been developed by the courts of appeals to decide this issue. The majority approach has been to perform a de novo analysis of congressional intent to determine whether Congress intended …

From The Mayan Machaquila Stele To Egyptian Pharaoh Amenhotep's Head: United States Courts' Enforcement Of Foreign National Patrimony Laws After United States V. Schultz, Kavita Sharma

UC Law Journal

Who owns the relics of cultures past? Worldwide trade in stolen art and antiquities is estimated to be between $860 million and $2.6 billion annually. As a result, nations rich in cultural property, such as art, manuscripts, antiquities, and artifacts, have enacted national patrimony laws to protect the exportation of such property out of their country. National patrimony laws give the state title to objects considered cultural property discovered within its borders. In the past thirty years, however, U.S. courts have struggled to find ways to repatriate cultural property based on a nation's patrimony laws.

The recent Second Circuit case, …

The History Of Wrongful Execution, Bruce P. Smith

UC Law Journal

Since the refinement of forensic DNA analysis in the early 199os, the problem of "wrongful execution" -the execution of persons who are actually innocent or the risk that such persons might be executed-has received considerable attention from scholars, legal practitioners, politicians, jurists, and social activists. The history of wrongful execution, however, remains unwritten.

This Article demonstrates that the problem of wrongful execution, although often considered to be a modern-day concern, preoccupied leading Anglo-American legal commentators in the seventeenth and eighteenth centuries. Troubled by several notorious instances of wrongful execution, prominent writers such as Matthew Hale and William Blackstone urged courts …

Implementing Atkins: The Strengths & Weaknesses Of In Re Hawthorne, Christopher Scott Tarbell

UC Law Journal

In 2002, the United States Supreme Court decided the case of Atkins v. Virginia. In Atkins, the Court created a categorical exemption from the death penalty for the mentally retarded, holding that the execution of such individuals violates the Constitution's ban on cruel and unusual punishments. However, the Court left to the states the difficult task of implementing the newly announced exemption.

The California Supreme Court confronted this challenge in the case of In re Hawthorne. In Hawthorne, the court was forced to decide what standards and procedures a court should use in assessing claims for Atkins relief raised by …

The Political Marketplace Of Religion, Calvin Massey

UC Law Journal

Inherent in the two Religion Clauses is the possibility of conflict: some accommodations of religion in the name of free exercise may amount to forbidden establishments and some limits on religious accommodation in the name of avoiding prohibited establishments may impermissibly interfere with the free exercise of religion. Judicial mediation of the tension between the Establishment Clause and the Free Exercise Clause resolves into one of four patterns, each characterized by the degree of deference courts display toward the legislative choices of accommodation of religion. Courts may be deferential to legislative choices that arguably inhibit free exercise and foster religion; …

Protecting Mutual Funds From Market-Timing Profiteers: Forward Pricing International Fund Shares, David Ward

UC Law Journal

It has been the worst crisis in the eighty-year history of the mutual fund industry. Beginning with a probe by New York Attorney General Eliot Spitzer, investigators and securities regulators have uncovered widespread improprieties in the $7.5 trillion mutual fund business. In case after case, hedge fund managers, brokers and mutual fund executives conspired to allow favored investors to rapidly trade in and out of mutual funds, taking advantage of pricing inefficiencies to reap hundreds of millions of dollars in profits at the expense of long-term shareholders. This Note examines the recently uncovered abuses within the industry and the responses …

Road Rage And R.S. 2477: Judicial And Administrative Responsibility For Resolving Road Claims On Public Lands, Bret C. Birdsong

UC Law Journal

Throughout the west, efforts to protect wild lands are being hampered by counties' and states' assertions of road ownership on public lands. On several occasions in the past decade, rural westerners have climbed atop bulldozers and scraped roads across some of the nation's most pristine lands, including National Parks, National Forests, and National Monuments, in the latest battle of the "sagebrush rebellion." The cover of Time magazine made one bulldozing county commissioner, Dick Carver of Nye County, Nevada, a folk hero for many rural westerners. Other counties' deployment of bulldozers has landed them in court, where they defend against the …

A Human Rights Challenge: Advancing Economic, Social And Cultural Rights, Mary Robinson

UC Law Journal

To address the underlying and unresolved human problems of injustice and despair, the Lecture argues that Americans must take the international human rights agenda seriously in the United States and around the world. The lack of significant progress to date in addressing the most pressing human rights challenges has been due in large part to the failure to confront them as problems of injustice instead of seeing them simply as problems of inadequate resources or lack of political will. While in the United States and Europe the focus since 9/11 has been on state security and combating acts of terrorism, …

Technocracy And Democracy: Conflicts Between Models And Participation In Environmental Law And Planning, James D. Fine, Dave Owen

UC Law Journal

Our environmental laws create an unfortunate paradox. They mandate science-based planning, and that mandate often translates into a practical or legal requirement to use complex simulation models. These laws also contain provisions for public participation. When agencies engage in technical decisionmaking, however, and particularly when they use complex yet uncertain models, the reasoning and risks underpinning decisions becomes difficult for public participants to understand and critique. As a result, legal mandates for science-based and participatory planning come into conflict. This conflict is inherent in many environmental statutes, and is acute in the State Implementation Plan (SIP) process required by the …

Civil Liability For Attorneys To Adverse Parties When A Settlement Agreement Is Breached In California, Daivd M. Lacy Kusters

UC Law Journal

When a settlement agreement is breached in California, the parties are generally solely liable for the breach. Occasionally, however, settlement agreements can create duties running between attorneys and adverse parties. In these situations, when a settlement agreement fails through no or negligible fault of the opposing party, the opposing party may be able to seek remedy through civil liability against the attorney. This Note provides an overview of the general duty that attorneys owe to third parties. It examines various causes of action available to plaintiffs and the various factors influencing liability. Lastly, this Note details a proposed virtual per …

A Road To Injustice Paved With Good Intentions: Maggie's Misguided Crackdown On Drowsy Driving, Joshua D. Levine

UC Law Journal

Sleep-deprived drivers pose a serious threat to the public, killing and injuring tens of thousands of Americans each year. Nevertheless, this problem was largely ignored until the summer of 2003, when the New Jersey legislature made national headlines by passing Maggie's Law. Maggie's Law is a unique revision to New Jersey's vehicular homicide statute that permits unprecedented criminal penalties for drowsy drivers who are involved in deadly automobile accidents. The law's passage has had an effect far outside New Jersey's borders, leading many other states and the federal government to consider similar legislation.

This Note details the history and language …

The Next Step In Dna Databank Expansion? The Constitutionality Of Dna Sampling Of Former Arrestees, Jacqueline K. S. Lew

UC Law Journal

This Note examines current developments in state DNA databank laws and the controversy surrounding the passage of California's latest DNA databank statute to predict that the next step in DNA databank expansion has arrived-namely, the collection of DNA from former arrestees, who neither have been convicted of a felony nor remain in government custody. Ultimately, the Note suggests that despite the recent trend towards expanding DNA databases around the country, the DNA sampling of former arrestees crosses a bright line that represents the constitutional end of such expansion.

In pointing out that courts have often relied on a plaintiff's status …

Antitrust Implications Of Casino Mergers: The Gamble Of Defining A Relevant Market, Melissa Fallon

UC Law Journal

In light of recent mergers in the casino industry, this Note examines what the FTC considers before approving or challenging a proposed merger. Defining a relevant market, a necessary step for merger analysis under the FTC and DOJ Merger Guidelines, is particularly challenging in the context of the casino industry given the array of basic products offered by casinos, the potential for submarkets of unique consumers, and the various geographic markets in which casinos compete for customers. This Note explores the frustratingly inconclusive case law available for guidance in this area and suggests what the FTC might have considered before …

Poisoning The Well: Law & Economics And Racial Inequality, Robert E. Suggs

UC Law Journal

Early Law and Economics advocates asserted that antidiscrimination laws were wasteful and unnecessary. This Article argues that that flawed conclusion resulted in a disregard, especially among African-American political and intellectual leaders, for economic analysis as a means of understanding racial phenomenon. The lack of economic analysis of race in market transactions is of great concern. Disparities in education, housing and employment have been intractable, Suggs argues, because racial disparities in business revenues dwarf those income disparities. To solve these disparities, however, requires not regulations but market incentives. Devising market interventions requires a sophisticated understanding of the way race affects market …

Quests For Conception: Fertility Tourists, Globalization And Feminist Legal Theory, Richard F. Storrow

UC Law Journal

As the cost of in vitro fertilization in the West skyrockets and countries enact laws that drastically curtail access to assisted reproduction, couples are turning more and more frequently to fertility tourism. This Article examines the relationship between restrictive reproductive laws, thought to be expressions of local values, and globalization, the ongoing process of worldwide interconnectedness that makes fertility tourism possible. After a discussion of the meaning and causes of fertility tourism, this Article demonstrates how such tourism dampens organized resistance to laws that restrict the available forms of assisted reproduction and thus how globalization itself plays a part in …

Lifting Our Veil Of Ignorance: Culture, Constitutionalism, And Women's Human Rights In Post-September 11 America, Catherine Powell

UC Law Journal

This Article examines cultural arguments made in opposition to the ratification by the United States of the Convention on the Elimination of Discrimination Against Women (CEDAW). The failure of the United States to ratify CEDAW has been conventionally understood as grounded in concerns that the Convention is incompatible with U.S. constitutionalism- particularly notions of federalism and limited government. However, as this Article demonstrates, opponents of CEDAW who testified during the ratification debate grounded their objections explicitly in terms of culture and traditional gender roles. In particular, CEDAW opponents expressed fear that ratification would disrupt traditional cultural understandings of women's role …

In The Wake Of Williams V. State: The Past, Present, And Future Of Education Finance Litigation In California, Christopher R. Lockard

UC Law Journal

Thirty-five years ago the California courts shook the nation's education finance system with the landmark decision in Serrano v. Priest, guaranteeing all of the state's children an equal education. Spurred by Serrano, advocates across the country brought their own lawsuits, winning significant victories in many states and billions of new dollars for their schools. But in California, the goal of Serrano - a quality education for everyone - has yet to be accomplished, in part because of an anti-tax backlash that has significantly constrained the ability of the state and its school districts to adequately fund their schools. As a …

U.S. Officials' Vulnerability To "Global Justice": Will Universal Jurisdiction Over War Crimes Make Traveling For Pleasure Less Pleasurable?, Amanda L. Morgan

UC Law Journal

Following the release of disturbing photographs from Abu Ghraib, the Center for Constitutional Rights (CCR) filed a criminal complaint in Germany against high-ranking U.S. political and military leaders, under a law that gives German courts universal jurisdiction over war crimes and crimes against humanity. This law enables Germany to prosecute perpetrators of these crimes, regardless of where the crime occurred, or whether the perpetrators or victims have any connection to the German forum. The CCR had viewed the German court as the court of last resort based on the documented unwillingness of the U.S. government to investigate involvement of all …

Free Exercise And The Problem Of Symmetry, Nelson Tebbe

UC Law Journal

A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Curiously, leading critics of the Supreme Court's approach have not taken issue with neutrality itself, but instead have argued that the Court has adopted the wrong sort of neutrality principle. In this Article, the author argues that neutrality of any stripe will be insufficient to vindicate the critics' own vision because of a difficulty called the problem of symmetry. Liberty, by contrast, is asymmetrical and consequently it delivers more attractive outcomes in real cases. The author proposes a liberty rule, describes how it would work, and defends …

Two Wrongs Don't Make A Patent Right, David Catechi

UC Law Journal

Recent litigation over genetically modified corn reveals an increasing imbalance between the property rights of genetic seed manufacturers and the rights of individual farmers. Common-law property doctrines and traditional patent law fail to protect farmers leaving them exposed to both potential genetic contamination of their crops and costly patent infringement liability. This Note proposes a simple yet effective solution-Notice. Requiring patent holders to provide notice to alleged infringing farmers sufficient to enable the farmer to cease infringement balances the rights of both the patent holder and the farmer. Litigation in both the United States and Canada regarding gentically modified corn …