Law Commons^™

Far From The Madding Crowd: A Statutory Solution To Crowd Crush, Tracy Hresko Pearl

UC Law Journal

Crowd-related injuries and deaths occur with surprising frequency in the United States. In recent years, crowd members in the United States have sustained significant injuries and even fatalities at concerts, sporting events, “doorbuster” sales, nightclubs, and large festivals. While some of these incidents have prompted victims to file negligence suits against event organizers and venue owners, common law has proven to be ineffective at addressing “crowd crush.” Indeed, courts have repeatedly held for defendants in these cases, making a series of scientific and legal errors in their analysis and providing little incentive for organizers and owners to improve their crowd …

Contextual Healing: What To Do About Scandalous Trademarks And Lanham Act 2(A), Megan M. Carpenter

UC Law Journal

Offensive trademarks have come to the forefront of trademark policy and practice in recent years. While it was once true that more attention had been paid to Lanham Act section 2(a) in the pages of law reviews than in the courts, recent cases have focused attention on the ban on registration of offensive marks and the widespread impact of this ban on trademark owners, including a case before the Supreme Court this term. In this Article, I answer the fundamental question: Given the problems previous research has identified, what should be done about the 2(a) bar for scandalous marks? This …

The Define And Punish Clause And The Political Question Doctrine, Lyle D. Kossis

UC Law Journal

The Constitution gives Congress the power to “define and punish . . . Offences against the Law of Nations.” Congress has used this power to enact various criminal statutes that proscribe certain violations of international law. In some cases, criminal defendants argue that these statutes are unconstitutional because Congress has incorrectly defined the law of nations. Federal courts routinely entertain this argument. But the political question doctrine prevents federal courts from resolving a question when the Constitution entrusts the political branches with providing an answer. The Define and Punish Clause gives Congress, not the courts, the power to define the …

The “New Insiders”: Rethinking Independent Directors’ Tenure, Yaron Nili

UC Law Journal

Director independence is a cornerstone of modern corporate governance. Regulators, scholars, companies, and shareholders have all placed a strong emphasis on director independence as a means to ensure that investors’ interests in their companies are well served. But what makes a director independent? While regulators and stock exchanges have tackled this elusive standard in different ways, the end goal is always the sameensuring that the director is able to exercise truly independent judgment and further the best interests of shareholders. Surprisingly, these regulatory bodies have failed to consider the impact board tenure might have on director independence. This Article seeks …

A Bridge Over The Patent Trolls: Using Antitrust Laws To Rein In Patent Aggregators, Eric Young

UC Law Journal

Patents, by their very nature, are a type of monopoly, and are so important to our country’s intellectual and technological advancement that the Founding Fathers granted Congress the power “to promote the progress of science and useful arts, by securing for limited times to . . . inventors the exclusive right to their respective . . . discoveries.” But in recent decades, that imperative has lost its footing. Mass patent aggregators, companies that compile, hoard, and assert patent rights without contributing products to the world have contorted that vision. “Patent Trolls” assemble portfolios of weak patents to corner and dominate …

Why The Burden Of Proving Causation Should Shift To The Defendant Under The New Federal Trade Secrets Act, Robert A. Kearney

UC Law Business Journal

For years courts in trade secret misappropriation cases have filled up a graveyard with claims that did not account for every possible alternative cause of the Plaintiff’s losses. The result is perverse: the more disruptive the Defendant’s misappropriation, the less likely the Plaintiff will be able to show the jury a clear picture of what happened and prove “but for” causation. But the new federal law frees courts from those cases and from the state misappropriation statutes that produced them. What is needed now is a shift in thinking, and a shift in a burden.

Complying With The Federal Trade Commission’S Disclosure Requirements: What Companies Need To Know When Using Social-Media Platforms As Marketing And Advertising Spaces, Aimee Khuong

UC Law Business Journal

Social-media platforms have become huge marketing and advertising spaces for both well established and start-up companies. In the 1990s, the Internet became a means for companies to communicate with customers and to promote their products and services. Throughout the past decade, the Internet has become a powerful platform that has changed the way companies do business and communicate with their customers. The growth of digital marketing through the Internet resulted in new forms of marketing and advertising space. Nowadays, any business can reach a large market with a very small investment, and anybody that can read and write has the …

Yours, Mine And Ours: A Proposal To Bring Certainty To The Use Of Personal Goodwill In The Sale Of Assets Of A C Corporation, Teri L. K. Shugart

UC Law Business Journal

Use of a personal goodwill allocation in the sale of assets is the current darling of the tax wonk world, made popular again by the recent case of Bross Trucking v. Commissioner. The ability to allocate some of a corporate seller’s purchase price in a sale of assets to an individual shareholder rather than to the corporation saves that individual shareholder from being subject to the double taxation of a C corporation.

Despite its ability to save on taxes, company advisors are reluctant to allocate part of a purchase price to personal goodwill because of the uncertainty surrounding how to …

The Taxation Of Thieves And Their Victims: Everyone Loses But Uncle Sam, Christine Manolakas

UC Law Business Journal

The taxation of thieves and their victims must be studied as a whole. Both perpetrators and victims of crime must navigate the complexities of the federal tax laws. Not surprisingly, the decision to tax illegal income resulted in unreported income by criminals and prosecution of criminals by the Treasury Department. The perpetrators of crime must defend a second criminal prosecution, which requires a careful examination of the U.S. Constitution, provisions of the Internal Revenue Code, and administrative practices of the Internal Revenue Service. The victims of crime are often in conflict with the Treasury Department as to the inclusion and …

An “Act Of God”? Rethinking Contractual Impracticability In An Era Of Anthropogenic Climate Change, Myanna Dellinger

UC Law Journal

“Extreme” weather has become the new normal. Previously considered to be inexplicable and unpredictable “acts of God,” such weather can no longer reasonably be said to be so. They are acts of man. The current doctrine of contractual impracticability rests on the notion that a party may be exculpated from contractual liability if supervening events render a performance impracticable, unless they have implicitly or explicitly assumed the risk. To a large extent, courts still consider the foreseeability of the event and an a party’s ability to control it. However, it makes little logical or legal sense to continue to allow …

California Charter School Teachers: Flexibility In The Classroom, Vulnerability As An Employee, Jennifer Hom Chen

UC Law Journal

Since the passage of the Charter Schools Act of 1992, charter schools have been hailed for achieving better results for students compared to traditional public schools in California. In particular, charter schools are touted for their ability to serve the needs of low-income students in urban areas. Proponents also assert that charter schools present teachers with the opportunity to work in a more flexible environment, where they allegedly enjoy greater flexibility and control over their instructional and curricular decisions, giving them the ability to innovate and experiment with new teaching pedagogy to meet the unique needs of their students. However, …

Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge

UC Law Journal

As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears hopelessly behind the curve. The patchwork of state, federal, and private legal rules seems more worthy of condemnation than emulation. This Article argues, however, that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systemsexemplified by Articles 3 and 4 of the Uniform Commercial Codehas …

Preventing Opioid Misuse With Prescription Drug Monitoring Programs: A Framework For Evaluating The Success Of State Public Health Laws, Rebecca L. Haffajee

UC Law Journal

The United States is in the midst of a prescription opioid overdose and misuse epidemic. Although many factors have contributed to the escalation of prescription painkiller misuse, it parallels increases in the supply and prescribing of opioids. Prominent state-level regulatory interventions, such as the establishment of prescription drug monitoring programs (“PDMPs”), recognize prescribers as opioid gatekeepers. Prescribers, who are uniquely situated to distinguish between appropriate use and misuse of opioids, are a natural target for regulation. PDMPs also target patients who seek to obtain high volumes of prescription opioids for illicit purposes. PDMP policies are widespread but heterogeneous, largely uninformed …

Miranda Overseas: The Law Of Coerced Confessions Abroad, David Keenan

UC Law Journal

In recent years, Article III courts have become the preferred venue for the U.S. government to try terrorism suspects captured abroad. Many liberals have welcomed this development, characterizing it as a proper extension of American rule of law principles to the so-called “War on Terror.” But while many have celebrated the marginalization of the military tribunal system, few have directly acknowledged its potential costs. This Article examines one of those costs: Reduced procedural safeguards for Article III defendants against statements procured through coercive interrogation techniques. As courts have repeatedly recognized, the core purpose of the Fifth Amendment’s Self-Incrimination Clause is …

Simplicity V. Reality In The Workplace: Balancing The Aims Of Vance V. Ball State University And The Fair Employment Protection Act, Elizabeth Lee

UC Law Journal

Under Title VII of the Civil Rights Act of 1964, an employer can be held liable for harassment or discrimination by a supervisor. In 2013, in Vance v. Ball State University, the Supreme Court narrowed the definition of supervisor, limiting victims’ ability to prevail on vicarious liability claims. In response, Congress proposed the Fair Employment Protection Act (“FEPA”), which sought a return to the broader, pre-Vance definition of supervisor. While Congress has been successful in overriding decisions inconsistent with Title VII’s aims in other contexts, FEPA did not gain enough momentum and eventually failed. As a result, the Vance decision …

Editing Embryos: Considering Restrictions On Genetically Engineering Humans, Anna Zaret

UC Law Journal

In April 2015, scientists used a new genetic engineering tool known as CRISPR to edit the genes of a human embryo for the first time. CRISPR has made gene editing cheaper, more efficient, and more accurate than ever before. These advances in technology indicate that in the near future, technology will enable the genes of embryos to be edited, leading to the birth of the first “genetically modified human.” This Note explores the potential benefits and risks of editing embryos for reproductive purposes, and problematizes the lack of meaningful public regulation or deliberation in the United States on editing embryos. …

Taxation By Condition: Spectrum Repurposing At The Fcc And The Prolonging Of Spectrum Exhaust, T. Randolph Beard, George S. Ford, Lawrence J. Spiwak, Michael Stern

UC Law Science and Technology Journal

In this article, we show how the Federal Communications Commission’s regulatory process may be used by special interests (and the Agency) to impede the efficient functioning of a secondary market for commercial spectrum. In particular, we show that imposing (and threatening to impose) significant conditions when firms seek to repurpose spectrum from a low-value to a highervalue use acts as a “tax” and thus reduces the incentives of firms to exchange spectrum in the secondary market. As a result, “taxation by condition” will discourage the larger scale transactions necessary to resolve the acknowledged spectrum shortages in the commercial mobile wireless …

You Can Dance If You Want To? Initial Interpretations Of The Bpcia’S Patent Dance With Sandoz And Amgen, Jenny M. Alsup

UC Law Science and Technology Journal

As patents covering brand-name biologics begin to expire, biosimilar manufacturers are preparing to enter the market. Since its enactment in 2010, many have speculated on how the Biologics Price Competition and Innovation Act will influence competition and innovation, and whether the provisions struck the right balance. Now for the first time, the judiciary is interpreting the so-called “patent dance,” the Act’s information exchange and litigation provisions, in decisions that will impact the biosimilar landscape in the years to come. Two cases involving the biologic manufacturers Sandoz and Amgen illustrate the Act’s susceptibility to different interpretations.

The Standard Of Review For Claim Construction In Inter Partes Review, Alana Canfield Mannigé

UC Law Science and Technology Journal

The Court of Appeals for the Federal Circuit (Federal Circuit) hears appeals from the United States Patent & Trademark Office (PTO). Recently, the American Invents Act expanded the PTO’s power in the patent world by creating new types of proceedings, including Inter Partes Review (IPR), by which one may challenge the validity of a patent. To determine the validity of patent claims in IPR proceedings, the PTO must first perform claim construction. As an administrative agency, the decisions of the PTO (such as claim construction) should be accorded significant deference by way of the Administrative Procedure Act (APA). In the …

Killing Two Achievements With One Stone: The Intersectional Impact Of Shelby County On The Rights To Vote And Access High Performing Schools, Steven L. Nelson

UC Law Journal of Race and Economic Justice

The Civil Rights Movement sought to ensure access to the right to vote and to quality education. Although these two pursuits are historically inseparable, scholars have addressed education and voting rights as separate struggles within one movement. This Article addresses the intersection of educational equity and voting rights by assessing the role of the Supreme Court’s decision in Shelby County v. Holder on Black voters’ ability to participate in the politics of education and educational policy via school board selection processes. This Article argues that the Court’s decision in Shelby County restricted access to political participation for Black voters in …

The Fourth Sector: Creating A For-Profit Social Enterprise Sector To Directly Combat The Lack Of Social Mobility In Marginalized Communities, Carlos Jurado

UC Law Journal of Race and Economic Justice

The United States is currently facing record high rates of income inequality and, as a result, there is a general lack of social mobility. This is troublesome for Americans because of the potential disastrous implications for the United States economy. The current state of the American market has enabled an environment where a few elite continue to hoard large amounts of the profits generated by the economy while the lower class has experienced a substantial growth in population with incomparable economic growth. In addition, the middle class has significantly diminished and can soon be rendered ineffective in its role as …

Fortitude In The Face Of Adversity: Delta Sigma Theta’S History Of Racial Uplift, Gregory S. Parks, Marcia Hernandez

UC Law Journal of Race and Economic Justice

The common narrative about the African-American quest for social justice and civil rights during the 20th century consists, largely, of men and women working through

organizations to bring about change. The typical list of organizations includes, inter alia, the National Association for the Advancement of Colored People, the National Urban League, the Southern Christian Leadership Conference, and the Student Nonviolent Coordinating Committee. African- American collegiate-based sororities are almost never included in this list. Nevertheless, at the turn of the 20th century, a small group of organizations founded on personal excellence sparked the development and sustaining of fictive-kinship ties and racial …

Niños, Niñas Y Adolescentes In Guatemala: Reflections On The Implementation Of The Ley Pina, Stacy Kowalski

UC Law Journal of Race and Economic Justice

This Note examines Guatemala’s Ley de Protección Integral de la Niñez y Adolescencia (Law for the Comprehensive Protection of Children and Adolescents, or Ley PINA) and analyzes why this law has not effectively protected the rights of children and adolescents, within the context of historical and structural violence, which contribute to a lack of prioritization of youth in Guatemala. In 2014, the United States experienced a large influx of unaccompanied minors fleeing primarily from Guatemala, Honduras, and El Salvador. A delegate of attorneys and law students traveled to Guatemala to interview child advocates, including government officials, and representatives of non-governmental …

Broadbad, The States, And Section 706: Regulatory Federalism In The Open Internet Era, Charles M. Davidson, Michael J. Santorelli

UC Law Science and Technology Journal

The relationship between federal and state regulators in the U.S. telecommunications space has long been fraught with tension regarding the boundaries of regulatory authority over communications services of all kinds. Unlike with basic services like traditional telephony, however, Congress expressed a clear preference for leaving advanced services like broadband “unfettered” by both state and federal regulation, a preference that for many years was taken literally by the Federal Communications Commission (FCC), resulting in a

minimalist approach that prevailed for more than a decade. Though incredibly successful when measured by a range of metrics, federal regulators recently elected to dramatically alter …

From Victims To Litigants, Elizabeth L. Macdowell

UC Law Journal

This Article reports findings from an ethnographic study of self-help programs in two western states. The study investigated how self-help assistance provided by partnerships between courts and nongovernmental organizations implicates advocacy and access to justice for domestic violence survivors. The primary finding is that self-help programs may inadvertently work to curtail, rather than expand, advocacy resources. Furthermore, problems identified with self-help service delivery and negative impacts on advocacy systems may be explained by the structure of work within self-help programs and the nature of partnerships to provide self-help services. The Author uncovers previously unseen impacts of self-help programs on survivors …

A Comparison Between The American Markets For Medical And Legal Services, Ben Barton

UC Law Journal

America’s access to justice woes are paradoxical. We have more lawyers than every country except India and more lawyers per capita than every country except for Israel. We spend more on law as an absolute amount or as a percentage of GDP than any other country. At the high end, we provide best legal services in the world. And yet we barely provide any legal services to the very poor, and our lawyers cost too much for the working poor or even the middle class. We graduate so many juris doctors that as many as a third fail to find …

Litigants Without Lawyers: Measuring Success In Family Court, Marsha M. Mansfield

UC Law Journal

As thousands of litigants access our court systems without lawyers, the debate whether these litigants receive procedural and substantive justice has intensified. Nationwide, eighty percent of those accessing the court system in a family law matter do so without the assistance of a lawyer. As the numbers continue to increase exponentially and access to free or low cost legal services diminishes, courts, lawyers, legal service organizations, and law schools throughout the country continue to experiment with alternates to full-scale representation that can provide self-represented litigants with adequate legal assistance. Although some researchers have analyzed the overall success ratio for cases …

Collection Texas-Style: An Analysis Of Consumer Collection Practices In And Out Of The Courts, Mary Spector, Ann Baddour

UC Law Journal

As many as forty-four percent of Texans with credit files have nonmortgage debt in collection; this is more than ten percent above the national average. The Authors provide a snapshot of collection practices employed in Texas over a two-year period following the enactment of new court rules governing the litigation of most collection cases. Using a combination of quantitative and qualitative methods, they consider data in three general categories: (1) consumer complaints to the state and federal agencies; (2) court outcomes over a two-year period along with related demographic data; and (3) court observations conducted in five counties with a …

Designing The Competition: A Future Of Roles Beyond Lawyers? The Case Of The Usa, Rebecca L. Sandefur, Thomas M. Clarke

UC Law Journal

Most of the civil justice problems Americans experience never receive service from an attorney. Indeed, daily around the country, thousands of people arrive at court not only without a lawyer to represent them, but also without an understanding of where to go, what to do, or what will happen while they are there. Many jurisdictions are experimenting with models for assisting unrepresented people through the use of “roles beyond lawyers,” roles staffed by people who are not fully qualified attorneys but perform some of the tasks traditionally performed only by attorneys. One interesting aspect of these developments is their source: …

Advancing Equal Access To Justice: Barriers, Dilemmas, And Prospects, Tani G. Cantil-Sakauye Hon.

UC Law Journal

No abstract provided.