Law Commons^™

Twelve Steps, You're Out (Of Prison): An Evaluation Of "Anonymous Programs" As Alternative Sentences, Ethan G. Kalett

UC Law Journal

America's increasingly aggressive anti-drug policies place extreme burdens on the courts, prisons, and probation programs. Yet despite these "zero tolerance" policies, drug addiction and alcoholism continue to rise. Recent evidence shows that addiction is a treatable condition, and that providing such treatment to certain types of convicted criminals can reduce recidivism. But providing such treatment can be time consuming and costly. Consequently, courts are taking increasing advantage of using Twelve Step programs like Alcoholics Anonymous as low-cost, readily available treatment alternatives.

This Note explores whether diverting criminals to Twelve Step programs adequately safeguards the needs and aims of the criminal …

Hilton Davis And Jury Trials,, William Alsup, Carolyn Wiggin

UC Law SF Communications and Entertainment Journal

Congress' creation of the Court of Appeals for the Federal Circuit in 1982 led to a boom in patent litigation that has continued into the 1990's. As this boom has continued, the role of juries in patent infringement cases has been criticized, with commentators suggesting jury bias in favor of patent holders. In particular, critics of patent infringement jury trials have argued that the doctrine of equivalents favors plaintiffs by allowing juries too much discretion in finding a patent infringement when there has been no literal infringement.

In 1995, the Federal Circuit's decision in Hilton Davis Chemical Co. v. Warner-Jenkinson …

The Copyright Term Extension Act: Is Life Plus Seventy Too Much, Jenny L. Dixon

UC Law SF Communications and Entertainment Journal

The Copyright Term Extension Act, if enacted, will increase the term of copyright protection to include the life of the author plus seventy years. Proponents of this legislation argue that such an increase is necessary for the United States to remain competitive in international intellectual property matters. This Note examines that proposition in light of the United States copyright tradition, the international copyright agreements currently in effect, and the negative impact the extension could have upon users of the public domain.

Caught In The Web: Entrapment In Cyberspace, Jennifer Gregg

UC Law SF Communications and Entertainment Journal

Cyberspace presents a new forum for criminal activity, including the distribution of child pornography. Law enforcement has responded with creative undercover techniques to catch on-line pedophiles and other lawbreakers. But who is policing the police? This Note applies existing entrapment law to police deception in this novel setting, discusses the current state of the law, and demonstrates that the judicially created doctrine is inadequate to curb police abuses. It suggests that legislative action is needed to modify entrapment law to accommodate the special aspects of cyberspace, and identifies the threshold issues which such legislation must address.

Treatment Of Computer Software Under The Foreign Sales Corporation (Fsc) Provisions Of The Internal Revenue Code, David J. Kastanis

UC Law SF International Law Review

In 1984, the United States Congress enacted the Foreign Sales Corporation (FSC) provisions of the Internal Revenue Code in an effort to promote the export of U.S. produced goods by means of exempting from taxation a portion of income derived from the sale, lease or rental of "export property" for use abroad. The Internal Revenue Service has, however, denied the computer software industry access to this benefit by excluding software from the definition of "export property." This Note examines the congressional intent underlying the enactment of the FSC legislation and the evolution of the interpretation of the term "export property" …

Copyright Protection Of Computer Software In Taiwan And Its Enforcement By The Information Product Anti-Piracy Alliance, George C. C. Chen

UC Law SF International Law Review

Taiwan is one of the fastest growing global participants in the information technology industry. Over the last two decades, Taiwan has become a major market for and producer of computer-related products, including a wide variety of computer software. However, despite its current achievements in this industry, Taiwan continues to be plagued by its international reputation as "The Pirate Kingdom." In response, both the Taiwanese government and private organizations have begun to address this problem by providing foreign persons with greater intellectual property protections. The Taiwanese legislature has bolstered existing copyright protections through a revision of the Taiwanese Copyright Law. In …

Proposed Guidelines For Measuring The Propriety Of Armed State Responses To Terrorist Attacks, Sage R. Knauft

UC Law SF International Law Review

Transnational terrorism, politically motivated violence that crosses national boundaries, is a tangible threat to world peace and stability. Terrorists, often acting with the support of other states, have managed to organize themselves into transnational networks capable of striking almost any target in the world. Against this backdrop, Israel and the United States, two high profile targets of terrorist activity, have forwarded a justification for forcible state responses to these attacks. This argument, largely condemned by the international community, equates state-supported terrorist attacks with "armed attacks" which trigger a state's right to forcible self-defense under Article 51 of the United Nations …

William B. Lockhart And Bernard E. Witkin, Jesse H. Choper

UC Law Journal

No abstract provided.

The In/Fertile, The Too Fertile, And The Dysfertile, Lisa C. Ikemoto

UC Law Journal

This article takes the ongoing debate about whether and how procreative technologies should be regulated, and goes beneath it. Starting with the characterization of procreative technology as infertility treatment, this article explores three primary sets of norms constituting that characterization-fertility, technology, and family. The analysis is an attempt to map the interconnecting discourses of fertility, technology, and family, and so, proceeds in a non-linear manner.

Professor Ikemoto begins by exploring the edges of public discussion about acceptable procreative technology uses. That is, she first questions public responses to uses that have provoked controversy, from the first 'test-tube baby' to the …

Final Report Of The Blue Ribbon Commission On Jury System Improvement, J. Clark Kelso

UC Law Journal

The jury system in California is in crisis. This crisis manifests itself in public dissatisfaction with the jury system as it currently is structured and managed. The public is rendering its own judgment by refusing to show up for jury duty when called. Felony trials in several counties with large populations are now occasionally delayed because of an inability to provide sufficient jurors for the courtroom when needed.

In December 1995, the Judicial Council of California, the policy-making body for California's courts, appointed a Blue Ribbon Commission to conduct a comprehensive evaluation of the California jury system and to make …

A Pro-Death, Self-Fulfilling Constitutional Contruct: The Supreme Court's Evolving Standard Of Decency For The Death Penalty, Susan Raeker-Jordan

UC Law Constitutional Quarterly

In recent Eight Amendment decisions applying the Cruel and Unusual Punishment Clause to substantive challenges to the death penalty, a plurality of the United States Supreme Court has favored employing only the "evolving standards of decency" test of constitutionality, purportedly because it is an objective measurement of cruelty and unusualness. The Article will show, however, that contrary to the assertions of some Court members, the indicia for ascertaining the evolving standard of decency are far from objective. Rather, the evidence gleaned from he "objective indicia" of legislative enactments and jury sentencing behavior can be and has been rigged to favor …

The Hamlet Fallacy: Computer Networks And The Geographic Roots Of Obscenity Regulation, Randolph Stuart Sergent

UC Law Constitutional Quarterly

Juries currently can find sexually oriented material to be obscene based on the community standards of the locality in which they reside. To determine whether sexual material that is transmitted over an international computer network is criminally obscene, one must comprehend the local community standards of every locality in the United States. The Supreme Court's use of this "local community standards" rule reflects a view of the local community as a relatively homogenous society in a distinct, geographically defined locality. When applied to international communications networks, this standard will excessively "chill" speech that is otherwise protected by the First Amendment. …

Reflections On The Proposed United States Reservations To Cedaw: Should The Constitution Be An Obstacle To Human Rights, Ann Elizabeth Mayer

UC Law Constitutional Quarterly

The United States Constitution enjoys a special, sacred status that encourages the United States to treat its constitutional rights standards as definitive and therefore entitled to override conflicting standards in human rights treaties. When ratifying human rights treaties, the United States has entered reservations that are designed to ensure that constitutional rights standards will remain in force, even when they are less protective of rights than their international counterparts. Where women's rights are concerned, the United States has effectively rejected the international standard of equality for women, upholding instead the intermediate-tier standard developed under the Equal Protection Clause. Reluctant to …

Of Kirpans, Schools, And The Free Exercise Clause: Cheema V. Thompson Cuts Through Rfra's Inadequacies, Dipanwita Deb

UC Law Constitutional Quarterly

In Cheema v. Thompson, a group of Sikh students suspended by the Livingston Union School District for carrying knives to school as dictated by their religion sued the district under the Religious Freedom Restoration Act (RFRA). The students are now back in school awaiting trial on the merits of their RFRA claim. This Note examines the Cheema case and uses it to argue that the language of RFRA as it now exists is inadequate to serve the broad religion-protective purposes for which the statute was enacted. The Note then proposes new amendments to RFRA, and tests the workability of these …

Equal Protection, Unequal Political Burdens, And The Ccri, Vikram D. Amar, Evan H. Caminker

UC Law Constitutional Quarterly

States certainly have the right to repeal previously enacted race-based affirmative action programs. As Professors Amar and Caminker point out, however, a rarely discussed line of Supreme Court authority identifies some federal constitutional limitations on the ways in which states may effect repeal. The most coherent and sophisticated reading of this line of cases suggests the following: When a state law not only repeals programs that specially benefit racial minorities, but also entrenches that repeal by making reenactment of those programs in the future particularly difficult, such a law runs contrary to the Equal Protection Clause. Taking these cases as …

Reverse Racism: Affirmative Action, The Family, And The Dream That Is America, Robert S. Chang

UC Law Constitutional Quarterly

In this Essay, Professor Chang explores the interaction of race and family in the affirmative action debate. Although discrimination against women remains rampant in our society, and despite the fact that white women have been the primary beneficiaries of affirmative action, white women are being told that affirmative action hurts them because it hurts their husbands, brothers, and sons. Familial loyalty is being invoked to do the work of an explicit call for white racial solidarity. This strategy may be successful because as late as 1987, even with the increasing rate of interracial marriage, 99% of white Americans were married …

Failure Of The Color-Blind Vision: Race, Ethnicity, And The California Civil Rights Initiative, Neil Gotanda

UC Law Constitutional Quarterly

Advocates for the California Civil Rights Initiative have argued that they seek racial justice in a color-blind society. In this Article, Professor Gotanda first analyzes race color blindness to show that the color-blind vision is far from a truly open and just vision, but instead undermines efforts to achieve genuine social justice. The second section examines Hopwood v. Texas, a recent Fifth Circuit decision, and concludes that the majority opinion pursues an extremist color-blind vision which would deny any validity to the history and culture of women or racial and ethnic minorities. The third section examines the textual language of …

Supreme Court Voting Behavior: 1995 Term, Richard G. Wilkins, Matthew K. Richards, Scott Worthington

UC Law Constitutional Quarterly

This Article, the eleventh in a series, attempts through statistical analysis to determine whether individual Justices on the United States Supreme Court (as well as the Court as a whole) voted more "conservatively," more "liberally," or about the same in the 1995 Terms as compared with past terms. The 1995 figures reveal a Court in ideological tension. Although some statistical measures suggest conservatism on the High Bench, there are notable contrary liberal indicators as well (principally in the areas of state criminal cases, federal jurisdiction, and First Amendment claims). Indeed, regression analysis demonstrates that the 1995 "liberal" movement in state …

Viewpoint Discrimination, Marjorie Heins

UC Law Constitutional Quarterly

Government action that disfavors speech because of its ideas or views is, as the Supreme Court recently said, "an egregious form of content discrimination," and is usually unconstitutional. However, it is not always clear precisely what makes discrimination viewpoint-based. Although the Court has recognized that disfavoring religious perspectives amounts to viewpoint discrimination, it has not yet applied this insight to government actions that target speech because it is deemed to be "political," "controversial," or "offensive." This Article addresses these questions in light of the history and basis of the viewpoint discrimination doctrine and underlying First Amendment values.

Specifically, this Article …

And To The Republic For Which It Stands: Guaranteeing A Republican Form Of Government, Catherine A. Rogers, David L. Faigman

UC Law Constitutional Quarterly

Article IV, Section 4 of the Constitution was intended to safeguard against instability and oppression of voting minorities and to provide a check on factious majorities through a system of representative democracy. The state initiative process directly undermines these principles by allowing measures such as the CCRI to be enacted via direct vote of a largely uninformed population. This "direct democracy" violates the guarantee of a republican form of government in its lack of formal deliberation and debate, absence of opportunity to compromise, polarization of views, deception, and ultimate voter confusion.

This Essay also addresses the arguments in favor of …

The Allure And Danger Of Community Values: A Criticism Of Liberal Republican Constitutional Theory, Kenneth Ward

UC Law Constitutional Quarterly

This Article contends that liberal republican efforts to legitimate political authority are weakened by a tension between two benefits that liberal republicans claim arise from rights of political participation: the definition of community values, and the facilitation of individuals' deliberations about private interests. It argues that a government cannot define community values without impeding citizens' deliberations about private interests.

The Article employs Alexander Bickel's approach to judicial review. Bickel believes that we must explain how the Court can contribute to a legitimate government without undermining the majoritarian processes that ensure legitimacy by representing private interests. The liberal republicans fail to …

Progress On The Environmental Front: The Regulation Of Industry And Development In India, Armin Rosencranz, Kathleen D. Yurchak

UC Law SF International Law Review

Since 1991 India has been encouraging large foreign investment in its economy to compete with its industrialized counterparts in the global marketplace. Although India's current economic reform has led to increased industrial investment and aggressive development, it has also been marked by substantial threats to the environment. India's government now faces the difficult task of juggling investment and economic reform with the desire to avoid environmental degradation.

This Article explores the relationship between economic development and environmental protection in India. In doing so, the Article highlights the difficulties facing any newly industrialized developing country seeking to enter the world market …

Hardware And Software Licensing Issues For The 1990s, Ronald L. Yin

UC Law SF International Law Review

High technology is the engine that has fueled economic growth in the United States and in the Asia Pacific region for the past two decades. As the Pacific Rim countries, including the United States, increase their trade in the high technology area, trade friction involving intellectual property issues will become more dominant. This Paper seeks to examine the potential licensing issues in hardware and software that may develop as we proceed into the next century. In particular, it will examine issues involving hardware and software patents and software copyright as they relate to leading edge technology.

Enforcement Of Injunctive Relief And Arbitration Awards Concerning Title To And Enforcement Of Intellectual Property Rights In Asia And The Pacific Rim, M. Scott Donahey

UC Law SF International Law Review

Increasingly, companies are licensing their intellectual property rights for use by foreign companies in countries other than those in which the rights were created. Should disputes concerning the license agreements arise, the parties require a neutral forum in which such disputes can be resolved. The traditional neutral forum for international commercial disputes is international arbitration.

Unfortunately, the recognition and enforcement of arbitral agreements and arbitral award varies from country to country. This Paper surveys of Asian and Pacific legal systems to underscore the differences in treatment throughout the region. A working knowledge of how a particular country views the arbitrability …

Tensions In Cuban Property Law, Steven E. Hendrix

UC Law SF International Law Review

Property law occupies center stage in the bilateral relations between the United States and Cuba. It represents an emotional flashpoint for foreign investors who lost property under the early years of Fidel Castro's government, and remains a concern for potential future investors, foreign and domestic. Cuban property law is a core concern today for broadly based, sustainable economic development for the Cuban people. Beginning in 1959, Cuba began a series of interventions in the land market designed to favor historically disadvantaged groups. Today, outstanding Cuban expropriations of U.S. property are valued at about $6 billion. This issue will need to …

Vara's First Five Years, Simon J. Frankel

UC Law SF Communications and Entertainment Journal

This article addresses the background, provisions, and brief history of the Visual Artists Rights Act of 1990 (VARA), a federal law protecting the "moral rights" of visual artists. These non-economic rights, which give artists some control over their creations even after the works are sold, have a long history in continental Europe, but are a recent import to the United States. After American courts declined to recognize such rights under common law earlier in this century, approximately a dozen states enacted laws protecting the rights of creators of "fine art." These statutes generally protect the artist's right of integrity-to protect …

Return To Hot Wheels: The Fcc, Program-Length Commercials, And The Children's Television Act Of 1990, Allen K. Rostron

UC Law SF Communications and Entertainment Journal

In the Children's Television Act of 1990, Congress directed the FCC to address the problem of "program-length commercials" aimed at children. Such programs, essentially thirty-minute ads for toys and other products, proliferated during the 1980s as the FCC deregulated children's television. In response to the Children's Television Act, the FCC adopted a policy that purported to address the problem, but actually avoided facing it. In its rule-making proceeding, the FCC disregarded Congress' concerns, misconstrued the issue presented, and mischaracterized the ineffective policy adopted as consistent with FCC rulings of the 1960s and 1970s. The need continues for a more effective …

Access To Premises And Easements: Can The Cable Operator Come In, Philip Kantor

UC Law SF Communications and Entertainment Journal

This article reviews the attempts by cable television operators to access easements in order to provide their service to television watchers. Cable operators first attempted to use state common law of apportionment in order to access utility easements. In order to argue that an easement could be apportioned, the operator needed to show that the easement was compatible for cable use and that use would not place an additional burden on the servient estate. Many courts have found that utility companies are authorized to share or apportion their easement rights with a third party, without obtaining the permission of, or …

The Subsistence Debate In Alaska: Who Will Control Navigable Waters, Mary Beth Mcleod

UC Law Environmental Journal

No abstract provided.

Prenatal Screening And The Culture Of Motherhood, Lori B. Andrews

UC Law Journal

Physicians use prenatal genetic tests on pregnant women to gain an increasing amount of information about fetuses before birth. These tests do more than predict the future health of the developing fetuses, however; they transform the culture of motherhood-society's expectations of pregnant women and women's expectations of themselves. Decisions to undergo genetic testing-and control or lack of control over dissemination of the results of testing-affect women's self-image, personal relationships, and how women are judged by institutions such as insurers and employers. This article reviews psychological, anthropological, and sociological research on the impacts of genetic testing and argues that healthcare providers …