Law Commons^™

Relative Normativity: Challenging The Sovereignty Norm Through Human Rights Litigation, William J. Aceves

UC Law SF International Law Review

Since 1945, two developments in human rights law have challenged the dominion of the sovereignty norm. First, the international community has recognized the existence of competing human rights norms, some of which now compete with the sovereignty norm for primacy. Second, a diverse group of institutions has applied these norms to challenge the sovereignty norm by imposing civil and criminal liability on government officials when they commit human rights violations. This essay examines how the sovereignty norm has been challenged through human rights litigation. Two recent human rights cases. Filartiga v. Pena-Irala and Regina v. Bow Street Metropolitan Stipendiary Magistrate, …

Relative Sovereignty Of The Twenty First Century, Ivan Simonovic

UC Law SF International Law Review

The quality of state sovereignty in the contemporary world, both in internal and external relations, has fundamentally changed. Sovereignty of the state in international relations is changing from a system of international relations based on concentration of power in states alone into a system of power-sharing and balance between state and non-state actors. The principle of noninterference in the "internal affairs of a state" is being challenged by the international community's belief in its "responsibility to protect" the world's citizens from persecution, large-scale human rights abuses, and other sufferings. However rational, the process of increasing power-sharing between states, international organizations, …

Governance Of Internet Domain Names Against Cybersquatters In China: A Framework And Legal Perspective, Mo Zhang

UC Law SF International Law Review

Registration of domain names in China has been burgeoning at an accelerated pace in recent years. Due to the lack of an effective link between domain name registration and protection of trademarks, speculators, driven by the potential profit derived from registering famous marks and service marks of others, often abuse the registration and use of domain names. Consequently, trademark infringement stemming from illegal registration and use of domain names has emerged as a serious legal issue. Despite China's efforts to manage and control the registration of domain names through administrative schemes, such remedial measures seem inadequate to solve the thorny …

Golfers' Tort Liability - A Critique Of An Emerging Standard, Daniel E. Lazaroff

UC Law SF Communications and Entertainment Journal

This article argues that the recklessness standard applied by most contemporary courts to tort claims initiated by one sports participant against a co-participant is inappropriate in the context of golf. Rather, Professor Lazaroff asserts that golf is an activity in which a negligence standard should apply and that this lower threshold for liability can be utilized without chilling participation or altering the inherent nature of the sport. In sum, the recklessness standard generally used for more active or contact sports is unnecessary in the more passive and genteel setting of golf competition.

Your Trade Secret Is Safe With Us: How The Revision To Federal Rules Of Civil Procedure Makes Discovery Presumptively Confidential, Kurt Putnam

UC Law SF Communications and Entertainment Journal

This note addresses the debate in circuits regarding the propriety of stipulated protective orders to protect trade secrets in federal litigation. Putnam explores the approaches utilized by the 2nd and 1st Circuits, analyzing them in light of the former rules and the common law, respectively. He takes the position that the 2000 revisions to the Federal Rules of Civil Procedure to Rule 5(d) and a Rule 26(c) protective order help protect parties' confidentiality during litigation.

Ownership Issues In The Digital Divide, Yale M. Braunstein

UC Law SF Communications and Entertainment Journal

Unlike broadcast and telecommunications media, the Internet has developed largely without governmental regulation both in terms of service and content providers. Major communications and media firms essentially control both access to and content of the Internet. Policies to promote access to the Internet are crucial in closing the gap in the digital divide. This article focuses on how the concentration of ownership impacts Internet access and content, as well as on how industry structure affects broadband access.

Facing The Music: The Dubious Constitutionality Of Facial Recognitiontechnology, John J. Brogan

UC Law SF Communications and Entertainment Journal

Recent advances in biometric identification technology, along with ever more extensive databases of information about ordinary citizens, inspire concern among civil liberties advocates about whether there are any meaningful limits on government's ability to keep track of ordinary citizens. In this Article, Professor Brogan discusses facial recognition technology, and argues that courts should draw a distinction between wide area scans, which should be severely limited or banned, and focused facial scans, which may be allowable under limited circumstances involving particularized suspicion.

Figure This: Judging Or Federal Fraud? A Proposal To Criminalize Fraudulent Judging And Officiating In The International Figure Skating Arena, Kelly Koenig Levi

UC Law SF Communications and Entertainment Journal

In 2002, the "Salt Lake Scandal" - in which it was revealed that judges had colluded to predetermine the gold medal winners of figure skating events - tarnished the public image of the sport of international figure skating. However, aside from the involvement of an alleged Russian mobster, the scandal came as no surprise to competitive figure skaters or their followers. In this Article, Professor Levi argues that the fraudulent activity prevalent in international figure skating judging and officiating is comparable to the behavior prohibited by current federal fraud statutes, and proposes federal legislation to address the problem.

Speaking Out Of Thin Air: A Comment On Hurley V. Irish-American Gay, Lesbian And Bisexual Group Of Boston, Randall P. Bezanson, Michele Choe

UC Law SF Communications and Entertainment Journal

The appropriation and use of others' speech - through quotation, compilation, or republication - is ubiquitous; however, traditional First Amendment jurisprudence is often at a loss when it confronts "speech selection judgments." In this Comment, the Authors explore the phenomenon of speech selection, and the attributes of speaking and communication that may account for its status as speech under the First Amendment. The Authors then analyze the Supreme Court's reasoning in a single case, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, according to four different theories of speech and communication; in order to comment on ambiguities inherent …

Smells Like Slavery: Unconscionability In Recording Industry Contracts, Phillip W. Hall Jr.

UC Law SF Communications and Entertainment Journal

The music recording industry today is fundamentally broken: artists are in open revolt against the labels over their recording contracts; and one U.S. Senator has even stated, "this is the only industry in which after you pay off the mortgage the bank still owns the house." In this Note, Phillip Hall argues that although the equitable doctrine of unconscionability is clearly satisfied by the substantive and procedural unfairness in standard industry recording contracts, flaws in the judicial process make it unfeasible for most artists to seek relief in the courts; thus, what is needed to save the industry is legislation …

The Erosion Of Separation Of Powers Under The Congruence And Proportionality Test: From Religious Freedom To The Ada, Johanna Pirko

UC Law Journal

In the past five years, the Supreme Court has reduced the scope of Congress's powers under the Fourteenth Amendment. The Court's contemporary approach to Congress's authority denies Congress the opportunity to enact civil rights legislation benefiting "non-suspect" minority groups. This jurisprudence raises serious separation of powers concerns and virtually deprives Congress of its power to enact legislation to curb potentially unconstitutional state action.

In contrast to the monumental Supreme Court decision in Board of Trustees of the University of Alabama v. Garrett, this Note argues that extending Title I of the ADA to the states is well within Congress's section …

Cloning And Government Regulation, Hank Greely

UC Law Journal

No abstract provided.

Youngstown Revisited, Christopher Bryant, Carl Tobias

UC Law Constitutional Quarterly

In Youngstown Sheet & Tube Co. v. Sawyer, the U.S. Supreme Court struck down as unconstitutional President Truman's 1952 executive order authorizing federal government seizure and operation of the nation's steel mills. In this article, Professors Bryant and Tobias apply this landmark precedent to the provisions of President Bush's November 13, 2001 military courts executive order that purport to authorize indefinite detention of covered individuals and to preclude them from invoking the jurisdiction of the federal courts.

In this article, the authors first examine the constitutional text, history, and relevant Supreme Court authority supporting the conclusion that Congress, not the …

Nobody's Perfect: Proximate Cause In American And Jewish Law, Steven F. Friedell

UC Law SF International Law Review

Although it may seem counterintuitive, wrongdoers are not liable for most of the damage they cause. The law leaves most of the burden of torts on the victims because it would be neither just nor practical to hold culpable defendants liable for all the harm they cause. The difficult task for any legal system is to define the criteria that determine the limits of liability and to prescribe the procedures for applying those criteria.

This Article will explore the problem in both the American and Jewish legal systems and suggest ways in which the American system can be reformed. First, …

Once More Unto The Breach: The Inherent Liberalism Of The Criminal Law And Liability For Attempting The Impossible, John Hasnas

UC Law Journal

This Article provides a comprehensive re-analysis of one of the thorniest problems of criminal jurisprudence: when it is proper to convict a defendant who has attempted the impossible. Professor Hasnas begins by demonstrating that, contrary to received academic and judicial opinion, the common law defense of impossibility to a charge of attempt is both well-grounded and perfectly intelligible, being capable of accurate expression in a single sentence. He then accounts for the confusion regarding the defense by showing how the early courts that applied it were saying one thing while doing another, and how commentators and subsequent judges became misled …

Free As The Air: Rethinking The Law Of Story Ideas, Brian Devine

UC Law SF Communications and Entertainment Journal

This note discusses idea submissions in Hollywood, arguing for the necessity of idea protection in the entertainment industry. As in copyright, the law should provide protection for ideas to promote progress and incentives to create, thus achieving the aims of intellectual property. Devine states that the most significant form of protection for ideas is achieved through contract law, and he argues that preemption by federal copyright law is endangering idea protection.

The Tragicomedy Of The Public Domain In Intellectual Property Law, Samuel Oddi

UC Law SF Communications and Entertainment Journal

As the overall amount of protected and protectable subject matter expands, duration of protection grows longer, and overlap between types of protection increases, constituencies who rely upon intellectual subject matter as stimuli for the creative process grow concerned about incursions of the private domain into the public. This Article explores the relationship between the public domain as a source of sensory stimuli, the creative process as a generator of ideas, and the interaction among the public and private domains and the intellectual process - both in a "state of nature" and under the protections of an intellectual property system - …

Turning Seats Into Shares: Causes And Implications Of Demutualization Of Stock And Futures Exchanges, Roberta S. Karmel

UC Law Journal

A dramatic shift in the economic and power structure of the securities industry is currently in progress. Traditionally, stock and futures exchanges have operated in the form of non-profit mutual or membership organizations. To the extent market power was not curtailed by competition or regulation, mutual governance gave specialist or market maker members of an exchange control of the price, quality and range of services produced by the exchange. Exchange profits were returned to broker and dealer members in the form of lower access fees or trading profits. Further, exchanges have long operated as self-regulatory organizations (SROs) with members contributing …

Anticompetitive Concerns Of Internet Bases B2b Marketplaces: Information Sharing, Collusion And Monopsony Power, Michael Stajer

UC Law Journal

One estimate puts the number of B2B marketplaces currently in existence at over 700, with a growth to 5000 within 2 years, while Jupiter Research has estimated that up to 1500 such marketplaces are currently in existence. Marketplaces serving the aeronautics, automobile, farming, consumer products, paper, medical products and retailing industries have been announced or are already operating. The rush to develop exchanges that promise lower procurement costs, lower cost of goods, and efficiencies in developing and marketing products has enabled many marketplaces to develop without much attention to potential anticompetitive problems.

In their rush to market these marketplaces failed …

Cloning And Federalism, Ashutosh Bhagwat

UC Law Journal

No abstract provided.

Supreme Court Voting Behavior: 2000 Term, Richard G. Wilkins, Scott Worthington, Carter K. F. Chow, Sarah K. L. Chow

UC Law Constitutional Quarterly

This Study, the fifteenth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2000 Term. The analysis is designed to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same when compared with past Terms. This Term's survey shows mixed results, but suggests slight liberal movement for the Court as a whole, following last Term's conservative voting trend. The Court voted more liberally in six of the ten categories of the Study this Term compared to last Term. However, the strength of …

In For A Calf Is Not Always In For A Cow: An Analysis Of The Constitutional Right Of Anonymity As Applied To Anonymous E-Commerce, Sharon K. Sandeen

UC Law Constitutional Quarterly

The ability of Internet users to be anonymous is often touted as one of the benefits of the Internet. It is argued that anonymity on the Internet should be protected because it enhances the free exchange of ideas and helps preserve individual privacy. But anonymous on-line communications have an obvious darkside. Anonymous Internet messages and advertisements increase the potential for fraud by making it difficult, if not impossible, for the true identities of communicants to be traced. This article explores the tension that exists between efforts to regulate anonymous Internet communications and the free speech principles of the First Amendment. …

The Spectre Of Star Chamber: The Role Of An Ancient English Tribunal In The Supreme Court's Self-Incrimination Jurisprudence, Frank Riebli

UC Law Constitutional Quarterly

The author investigates the Supreme Court's allusions to the ancient English Court of Star Chamber. Throughout its history, the Supreme Court has used the spectre of Star Chamber to develop at least three themes in its Self-Incrimination Clause jurisprudence. Star Chamber appears as a symbol of brutality, the end of a slippery slope towards which our criminal justice system would drift but for the Self-Incrimination Clause's protections. Star Chamber is frequently used to describe the boundaries of the "testimonial evidence" doctrine, and thereby the scope and policies underlying the Self-Incrimination Clause. Finally, Star Chamber has appeared as a symbol of …

Vindicating Civil Rights Under 42 U.S.C. 14141: Guidance From Procedures In Complex Litigation, Eugene Kim

UC Law Constitutional Quarterly

In order to provide remedy for institutional violations of civil rights, Congress enacted 42 U.S.C. § 14141, which authorizes the U.S. Attorney General to seek injunctive relief from unconstitutional patterns and practices by law enforcement officers. Investigations and lawsuits thus far have resulted in consent decrees and agreements between the U.S. Department of Justice and local governmental authorities. This Note proposes that, in order to achieve the most effective and meaningful reform, courts look for guidance to procedures in complex litigation. In particular, the Note discusses potential benefits of employing special masters in § 14141 cases, provision of notice and …

The Brazilian Legal Tradition And Environmental Protection: Friend Or Foe, Janelle E. Kellman

UC Law SF International Law Review

Brazil is home to almost forty-two percent of the area known worldwide as the Amazon basin. Despite its tremendous beauty and ecological richness, the Amazon forest is being destroyed at an unprecedented rate. Legal historians and international scholars have argued that the controversy surrounding the Amazon has stemmed from conflicting economic uses of the forest. Economics, however, is only one piece of the puzzle that accounts for the massive destruction of the rainforest and its surrounding ecosystem. Brazil has a complex set of environmental regulations and statutes. This Article examines how Brazilian legal culture and society have made it virtually …

Electronic Signatures: A Comparison Of American And European Legislation, Lance C. Ching

UC Law SF International Law Review

The federal Electronic Signatures in Global and National Commerce Act, effective on October 1, 2000, established that a signature, contract, or record related to an interstate or foreign transaction cannot be denied legal effect simply because it is in electronic form, subject to certain exceptions. For much the same purpose, the European Parliament and Council adopted the Directive on a Community Framework for Electronic Signatures in December 1999.

This Note discusses the approaches taken by the United States and the European Union toward establishing the validity of electronic signatures. It provides a brief overview of the history of electronic commerce …

Sovereignty: The State, The Individual, And The International Legal System In The Twenty First Century, Ronald A. Brand

UC Law SF International Law Review

In its origins, the concept of sovereignty dealt with the relationship between the individual and the "sovereign." Its application to the role of the state in international law developed as a secondary matter, bringing with it discussions of relationships between "sovereign" states. However, international law has moved beyond contemporary notions of sovereignty. Concerns about "giving up sovereignty" through participation in multilateral organizations are often misplaced. In this century the most important developments in international law will not be in state-state relationships but rather in the status and rights of the person in international law. The ultimate propriety of new international …

Sovereignty, Territoriality, And The Rule Of Law, Joan Fitzpatrick

UC Law SF International Law Review

On November 13, 2001, President George W. Bush issued a Military Order in which he claimed power as Commander in Chief to detain indefinitely and to try, by ad hoc military commissions, persons designated by him as international terrorists. This Order represents a stunning claim to absolutist power and a rejection of any meaningful legal constraints on the treatment of the captives. The Order and the "War on Terrorism" on which it is premised challenge the most commonly accepted principles of post-Westphalian sovereignty: exclusive control over territory, noninterference, and equality among states.

The legal premise for the Order is the …

A Proposal To Use Alternative Dispute Resolution As A Foundation To Build An Independent Global Cyberlaw Jurisdiction Using Business To Consumer Transactions As A Model, Victoria C. Crawford

UC Law SF International Law Review

Alternative Dispute Resolution ("ADR") has traditionally operated on the outskirts of the law as an alternative or supplement to traditional court constructs. ADR is typically described as operating in the shadow of the law and certainly not as the foundation for it. The uniqueness of the internet has the potential to reverse this traditional relationship. This paper suggests that online ADR techniques could be used as a foundation upon which to build an independently existing global cyberlaw jurisdiction for business to consumer transactions.

Digital Divide: Myth, Reality, Responsibility, Nicholas W. Allard

UC Law SF Communications and Entertainment Journal

The author explores the fundamental benefits of eliminating the digital divide. Improving access to technology is both a positive thing with respect to social conscience, but it is an imperative of democracy, as well as making fundamentally good, hardheaded economic sense. John Nash's game theory applies, expounding the benefits of selfish self-interest for individuals, for social groups and for society as a whole.