Law Commons^™

Continuing Economic Reform In The People's Republic Of China: Bankruptcy Legislation Leads The Way, Shirley S. Cho

UC Law SF International Law Review

Critics view the 1986 Enterprise Bankruptcy Law (Bankruptcy Law) of the People's Republic of China as an ineffective piece of legislation passed more for symbolic ends than as a means to deal with systemic economic problems plaguing China. However, the Bankruptcy Law has proven to be one of the most pivotal pieces of legislation in modern Chinese history and has served as the main impetus for wide-reaching reform in major sectors of the Chinese economy.

This Note examines the debate surrounding the Bankruptcy Law from its inception, its controversial substantive provisions, its unsuccessful implementation, and finally its positive repercussions in …

A Model Water Transfer Act For California, Richard M. Rosenberg

UC Law Environmental Journal

No abstract provided.

Communities And Water Markets: A Review Of The Model Water Transfer Act, Santos Gomez, Penn Loh

UC Law Environmental Journal

No abstract provided.

The Shape Of Transfers To Come: A Model Water Transfer Act For California, Brian E. Gray

UC Law Environmental Journal

No abstract provided.

Wheeling Provisions Of The Model Water Transfer Act, Timothy H. Quinn

UC Law Environmental Journal

No abstract provided.

Reflections On The Model Water Transfer Act By The Natural Heritage Institute, Gregory A. Thomas, Tara L. Mueller

UC Law Environmental Journal

No abstract provided.

The Lecture Series, Mary Kay Kane

UC Law SF Communications and Entertainment Journal

No abstract provided.

Patent Protection For Computer-Related Inventions: The Past, The Present, And The Future, Nancy J. Linck, Karen A. Buchanan

UC Law SF Communications and Entertainment Journal

Intellectual property protection is important to the United States' economic welfare, in particular to the computer industry. This Article briefly overviews the underlying purpose of the United States' patent laws and the confusion present in the law regarding patent protection for computer software and computer-related inventions. It begins its discussion of this confusion with a review of the history of patent protection for these inventions, characterizing the history as "marked by 'stops and starts.'" The initial "starts" are numerous cases from the Court of Customs and Patent Appeals reversing the Patent and Trademark Office's (PTO's) refusal to issue a patent …

Utilitarian Design Features And Antitrust Parallels: An Economic Approach To Understanding The Funtionality Defense In Trademark Litigation, M. A. Cunningham

UC Law SF Communications and Entertainment Journal

In this Article, the author addresses an issue of continuing significant concern to trade dress owners by examining the impact of a recent Supreme Court decision on the role of the functionality defense in trademark litigation. He traces the development of the functionality doctrine in the courts and identifies the convergence of the principles underlying the doctrine with the competition concerns of antitrust law. The Article concludes with recommendations for ways of employing the economic analysis used in antitrust litigation as an effective tool to resolve disputes over whether a particular combination of design features is functional.

Impact Of The Communications Decency Act Of 1996 On Federal Prosecutions Of Computer Dissemination Of Obscenity, Indecency, And Child Pornography, William P. Keane

UC Law SF Communications and Entertainment Journal

With the passage of the Communications Decency Act of 1996, Congress provided federal prosecutors with a potentially powerful new tool for combating "indecent" communications sent or made available to minors through computer networks. The author offers an early examination of the CDA on the use of computer and computer networks as instrumentalities of federal obscenity, indecency, and child pornography crimes, as well as the possible Constitutional challenges that are likely to emerge. He also outlines anticipated problems with enforcement, proof, and various defense strategies.

Virtual Prostitution: New Technologies And The World's Oldest Profession, David Cardiff

UC Law SF Communications and Entertainment Journal

The various developing technologies that will allow entertainment consumers to receive video on demand will provide increased choice and interactivity. These technologies will also be capable of providing interactive video pornography, thus refocusing the public debate regarding obscene and indecent communications. This Note explores the capabilities of these new technologies, vis-A-vis pornographic communications, in the context of the traditional nuisance-based jurisprudence that has evolved in response to more traditional means of disseminating pornography, and in the context of the various new laws, including the Communications Decency Act of 1996, which are intended to restrict access to, and punish purveyors of, …

Pinning The Blame In Cyberspace: Towards A Coherent Theory For Imposing Vicarious Copyright, Trademark And Tort Liability For Conduct Ocurring Over The Internet, Ian C. Ballon

UC Law SF Communications and Entertainment Journal

Vicarious liability, or the principle that under certain circumstances it is fair and just to hold unrelated third parties liable for conduct which they did not initiate or perhaps even condone, is both a logical outgrowth of, and impediment to, the ongoing rapid expansion of the Internet. Online infringers and tortfeasors may be more likely than others to be effectively "judgment proof," because their conduct was undertaken anonymously, they cannot satisfy a damages award, or they are located beyond the jurisdiction of a convenient and economical U.S. venue for litigation. As a consequence, and as Internet use has increased and …

Regulating Competition In The Information Age: Computer Software As An Essential Facility Under The Sherman Act, David Mcgowan

UC Law SF Communications and Entertainment Journal

This Article examines the application of the antitrust laws to computer software markets, beginning with a discussion of the different economic approaches underlying the antitrust and copyright laws. The Article contends generally that antitrust does not provide the analytical tools necessary to determine the optimal scope of copyright protection. The Article then examines more particularly the increasingly common argument that access to software code-including at least some form of copying-may be an "essential facility" under the antitrust laws. In this regard the Article discusses the analytical confusion surrounding the essential facilities concept and argues that application of the concept should …

The Application Of Securities Laws In Cyberspace: Jurisdictional And Regulatory Problems Posed By Internet Securities Transactions, Kenneth W. Brakebill

UC Law SF Communications and Entertainment Journal

This Note examines the impact of the Cyberspace revolution upon our current American system of securities regulation. The Author discusses several recent technological innovations, including the advent of electronic media to deliver corporate information to investors, the use of the Internet to consummate public stock offerings, and the creation of on-line securities trading systems to match buyers and sellers, and addresses the response of securities regulators to these novelties. In large part, the author will explore the legal uncertainty that has been thrust upon the American courts, federal and state regulators, and investors in light of the growing use of …

Making The World Wide Web Safe For Democracy: A Medium-Specific First Amendment Analysis, Andrew Chin

UC Law SF Communications and Entertainment Journal

The World Wide Web, a vast speech domain that may ultimately swallow all current forms of telecommunications media, presents urgent First Amendment issues. Most significantly, the structure of linked documents on the Web has served to concentrate speech power and impoverish democratic discourse. As extensive surveys by the author and others demonstrate, commercial speech dominates the Web and political discourse on the Web has become balkanized.

Using a quantitative model, it is possible to isolate and identify the characteristics of Web sites that contribute to robust public debate. These findings suggest a range of structural policies that would support the …

American Wine's New Internationalism: Nafta's Impact On The U.S. Wine Industry In The Established And Emerging Markets Of Canada And Mexico, Sarah E. Richards

UC Law SF International Law Review

The North American Free Trade Agreement (NAFTA) specifically addresses wine trade issues. Although these provisions constitute only a small part of the overall agreement, their inclusion reflects the important role the wine industry has assumed in the United States, and hints at the increasingly prominent role wine exports will have in future relations among North American countries.

This Note examines the special problems that arise in conjunction with the exportation of wine and other alcoholic beverages from the United States. It goes on to contend, however, that NAFTA's implementation should significantly boost U.S. wine exports to the established but heavily …

The Historical Origins Of The Alien Tort Statute: A Response To The Originalists, William S. Dodge

UC Law SF International Law Review

The Alien Tort Statute, 28 U.S.C. § 1350, which provides federal jurisdiction over suits by aliens for torts in violation of the law of nations, has been used repeatedly in human rights litigation since Filartiga v. Pefia-Irala, 630 F.2d 876 (2d Cir. 1980). This Article looks at the history of the Alien Tort Statute, tracing its origins to the Alien Tort Clause of the 1789 Judiciary Act and, before that, to a 1781 resolution of the Continental Congress urging States to allow damages suits to redress violations of the law of nations. This history shows that the Alien Tort Statute …

Exposure To The Foreign Corrupt Practices Act: A Guide For U.S. Companies With Activities In The People's Republic Of China To Minimize Liability, Delia Poon

UC Law SF International Law Review

The Foreign Corrupt Practices Act (FCPA) creates a difficult task for U.S. businesses abroad: to reconcile the customary practices of many developing countries with the U.S. legal framework, which may be incompatible with regulating behavior abroad. This Note outlines the background and the major provisions of the FCPA, and examines the difficulties U.S. entities face in the People's Republic of China in light of China's increasingly corrupt business environment. China's rampant corruption, part-planned and part-market economy, and popular joint venture arrangements for direct foreign investment create numerous FCPA pitfalls.

This Note then examines ways in which U.S. businesses can minimize …

The Freedom Of Navigation Program: A Study Of The Relationship Between Law And Politics, William J. Aceves

UC Law SF International Law Review

The history of U.S. maritime policy evinces the inexorable relationship between law and politics. The U.S. Freedom of Navigation (FON) program provides an excellent example of this critical relationship. Established in 1979, the FON program seeks to preserve the freedoms of navigation and overflight by sending vessels and aircraft to exercise these navigational rights in areas where coastal states have sought to restrict or prohibit such transit. It combines diplomatic action with operational challenges to assert U.S. rights under international law. The FON program is based upon the principal sources of public international law: (1) customary international law and (2) …

Counsel For The Situation: The Latin Notary, A Historical And Comparative Model, Pedro A. Malavet

UC Law SF International Law Review

Compared to the legal profession found in the United States, in Latin countries an impartial counsel who advises all parties to a transaction is located at the top of the legal hierarchy and is referred to as the Latin notary. The Latin notary is granted exclusive power to perform certain legal functions such as memorialization of transactions. The Latin notary combines the competence traditionally associated with a public official and the discretion and responsibility of a private legal professional. For these reasons, the Latin notary is quite different from notaries public in the United States. The Latin notary owes a …

Considerations In Representing Western Companies In Technology Transfers To East Asia, Jeffrey J. Blatt

UC Law SF International Law Review

The countries of East Asia have some of the fastest growing economies in the world. The region's need for high technology is evident in the semiconductor, broadcasting, electronics, and telecommunications fields. Lack of high technology infrastructure outside major metropolitan areas lends itself to foreign direct investment, joint ventures, and the procurement of high technology by Asian buyers.

This Paper addresses a number of considerations, issues, pitfalls, and concerns for structuring a successful technology transfer to East Asia, from the perspective of a potential technology transferor or vendor. Specifically, this Paper examines the effect of export controls, tax implications, the Foreign …

The Resolution Of Intellectual Property Disputes Involving East Asian Parties, George W. Coombe Jr.

UC Law SF International Law Review

The resolution of international commercial disputes by conciliation and arbitration has gained considerable momentum throughout East Asia. A strong emphasis has been placed upon the conciliation technique and the historical, social, and cultural derivations pertaining to its use in East Asia.

This Paper examines the pragmatic consideration of software disputes and their resolution using proposed draft agreements between U.S. and Japanese parties in order to enhance appreciation of the conciliation and arbitration perspective in the context of intellectual property.

From Dictatorship To Democracy: Environmental Reform In Chile, Scott C. Lacunza

UC Law SF International Law Review

At the Summit of the Americas in December 1994, Canada, Mexico, and the United States formally invited Chile to join the North American Free Trade Agreement (NAFTA). Chile was selected as the first Latin American country to receive an invitation based upon its open market system, stable democratic government, and impressive decade-long economic growth. As the first Latin American country selected to join NAFTA, Chile has been viewed as a model for other developing nations to follow. However, while Chile's economic successes have been lauded as triumphs of the free market approach, little attention has focused on the severe environmental …

The Role Of The Judiciary In India's Constitutional Democracy, Maureen Callahan Vandermay

UC Law SF International Law Review

During the period immediately following India's independence from British rule, the Indian framers promulgated a Constitution which was designed to take account of India's unique circumstances. The Constitution both ensured the legal and social equality of all Indians and afforded the Indian Parliament considerable power to alter the Constitution in order to take account of changed political circumstances. Inevitably, shortly after the Constitution's adoption the Parliament began employing its powers of amendment to limit the effect of those provisions designed to promote equality. The Indian Judiciary responded, however, with various efforts to safeguard the constitutionally-protected liberties from abrogation by Parliament. …

Affirming Our Common Humanity: Regulating Landmines To Protect Civilians And Children In The Developing World, Mary A. Ferrer

UC Law SF International Law Review

The number of antipersonnel landmines worldwide has increased dramatically in the last twenty-five years. There are an estimated 80 to 110 million landmines deployed or stockpiled in sixty-two countries around the world. This global landmine crisis has devastating effects in developing countries, where the majority of the world's landmines are laid. Despite international efforts to remove landmines, civilians in developing countries continue to be injured by landmines that were laid during wars that have long since ended. Although landmines are perceived as purely military weapons, the reality is that eighty percent of landmine casualties are civilians, not soldiers. Many of …

At The Interface Of Patent And Trademark Law: Should A Product Configuration Disclosed In A Utility Patent Ever Qualify For Trade Dress Protection, Kevin E. Mohr

UC Law SF Communications and Entertainment Journal

Patent law seeks to advance technological innovation by encouraging invention with a limited-duration monopoly. In return, the inventor discloses his invention, and it becomes free for the public to use upon the patent's expiration. Trademark law seeks to avoid consumer confusion by granting to the trademark owner for an indefinite period a monopoly in the use of the mark in connection with its goods. Where a product is protected by a utility patent and the product owner also seeks to protect the product's shape or design by relying on trademark law, these policies can collide. This can result in the …

The First Amendment Under Pressure, Daniel Schorr

UC Law SF Communications and Entertainment Journal

No abstract provided.

What Are The Limitations On Freedom Of The Press, Daniel Schorr

UC Law SF Communications and Entertainment Journal

No abstract provided.

The Communications Decency Act And The Indecent Indecency Spectacle, David Kushner

UC Law SF Communications and Entertainment Journal

This essay situates the Communications Decency Act in contemporary jurisprudence and our postmodern culture. The author analyzes why both the proscription of indecency in cyberspace and the prescription of television ratings are unconstitutional. More importantly, the essay argues that cyberspace must be viewed as a post modern spectacle. The production forces of late capitalism have commodified sex and violence, making them the principal fruits of desire in cyberspace. These cultural urges, in conjunction with the convergence of telecommunications technologies, render the CDA and like forms of censorship fundamentally unenforceable. The essay concludes by suggesting the serious implications for First Amendment …

The Shirts Off Their Backs: Colleges Getting Away With Violating The Right Of Publicity, Vladimir P. Belo

UC Law SF Communications and Entertainment Journal

The popularity of college athletics is at an all-time high in the United States. Colleges and universities have capitalized on the enthusiasm through marketing merchandise aimed at taking advantage of the growing popularity. Recently, colleges have begun using the popularity of individual student-athletes by marketing clothing featuring uniform numbers of high-profile players on their tiams. This Note examines this latest trend in college sports merchandising.

This Note suggests that the marketing of this type of merchandise may violate student-athletes' common law and statutory rights of publicity. This Note chronicles the development of right of publicity law, concluding that a college …