Law Commons^™

Everything That Glitters Is Not Gold: Songwriter-Music Publisher Agreements And Disagreements, Don E. Tomlinson

UC Law SF Communications and Entertainment Journal

The standard-form long-term exclusive songwriter-music publisher "agreement" may be as good an example of a classic adhesion contract as any in American business life.. Music publishers have tremendous bargaining power; songwriters, at least in their early professional years, have little or none. It is no surprise, then, that such contracts heavily favor the music publisher and almost always are offered to beginning professional songwriters on a take-it-or-leave-it basis. While English courts have begun to recognize the "unconscionability" issue in these contracts-especially in relation to music publishers having no contractual obligation to "exploit" the copyrights received from songwriters under such agreements-American …

Unconscionability In California: A Need For Restraint And Constistency, Harry G. Prince

UC Law Journal

In California and many other states, courts often engage in the practice of reforming contracts based upon a determination that some part of the bargain was unconscionable. Professor Prince analyzes the unconscionability doctrine as it has been applied in California, particularly in the recent Buchwald v. Paramount Pictures Corp. decision. In Buchwald the court used the unconscionability doctrine to rewrite the motion picture industry contract on behalf of Art Buchwald, a sophisticated party represented by two agents. In evaluating the reasoning underlying Buchwald and other decisions, the author concludes that these cases raise significant doubt about the soundness and consistency …

The Fish, Rupert Brooke

UC Law Environmental Journal

No abstract provided.

The Views Of Bay/Delta Water Policy Activists On Endangered Species Issues, Paul A. Sabatier, Matthew A. Zafonte

UC Law Environmental Journal

No abstract provided.

Combining Conciliation With Arbitration Of International Commercial Disputes, Steven J. Burton

UC Law SF International Law Review

No abstract provided.

A Goal-Based Approach To Drafting Intestacy Provisions For Heirs Other Than Surviving Spouses, Cristy G. Lomenzo

UC Law Journal

The laws of intestate succession affect not only decedents who die without comprehensive and valid wills, but their surviving relatives, the state, and the public at large. Intestacy statutes providing for heirs other than surviving spouses are particularly important because such statutes often dispose of the bulk of an estate.

This Note explores the various legislative goals underlying intestacy statutes, such as satisfying a decedent's presumed intentions or fostering simplicity and uniformity of the statutes. The author concludes that no state legislature has adequately promoted these goals within its intestacy statute for heirs other than the surviving spouse and proposes …

Myths And Principles Of Federalization, Rory K. Little

UC Law Journal

Those who criticize the federalization of crime claim that the trend is causing a docket crisis in the federal courts. Professor Little challenges these criticisms as "federalization myths." He rebuts the claims of a crisis with an empirical analysis of workload levels in the federal courts and a historical analysis of federalization.

In his Article, Professor Little proposes a rebuttable presumption against the federalization of dual jurisdiction criminal conduct and suggests the principle of "demonstrated state failure" to determine when to override that presumption. He outlines how such a principle might operate and concludes that new federal criminal initiatives may …

Reporter's Draft For The Working Group On Principles To Use When Considering The Federalization Of Civil Law, Erwin Chemerinsky

UC Law Journal

No abstract provided.

Supreme Court Voting Behavior: 1993 Term, Richard G. Wilkins, James L. Kimball Iii, Scott M. Peterson

UC Law Constitutional Quarterly

This Article attempts, through statistical analysis, to identify the ideological learnings of the United States Supreme Court during the October 1993 Term. The Court adopted a more liberal approach to civil litigation involving state and federal governments, but it remained relatively conservative in its approach to criminal cases and statutory civil rights issues. Justice Kennedy emerged as the Term's most influential member in cases that were decided by a one-Justice majority; he was a member of the majority in all but one of the cases so decided. Justice Souter continued his gravitation to the liberal pole of the Court, and …

From Extreme Hardship To Extreme Deference: United States Deportation Of Its Own Children, Edith Z. Friedler

UC Law Constitutional Quarterly

United States citizens, who are children of aliens residing unlawfully in the country, are routinely deported with their parents. The courts, exercising an extreme deference to the decisions of the agency and to the acts of Congress in the area of immigration law, have abdicated their responsibilities in their role as guardians of the constitutional rights of these children. Although the courts have not granted children the same constitutional rights as those granted adults, cases involving de facto deportation of these children do not acknowledge the existence of even a procedural right of due process to protect the interest of …

Crisis In California: Constitutional Challenges To Inadequate Trial Court Funding, Gabrielle Tracey Letteau

UC Law Constitutional Quarterly

Inadequate funding of government is neither a unique, nor a new problem. Recent and severe cuts made to court budgets, however, threaten to destroy one of the three sacred branches of government. In California and elsewhere, these budgetary pressures bring into question several constitutional issues, such as whether the legislative branch may withhold funding to the detriment of a co-equal branch of government, and whether individual rights to access the courts are guaranteed under state and federal constitutions. This Note attempts to address these issues by examining the nature of the current financial crisis in California and offering suggestions for …

Fourth Amendment Protection For Juvenile Probationers In California, Slim Or None: In Re Tyrell J., Lidia Stiglich

UC Law Constitutional Quarterly

The Supreme Court of California recently held in In re Tyrell J. that juvenile probationers are subject to random, suspicionless searches. This Comment analyses in detail the reasoning the court used to distinguish the level of suspicion required for juvenile probationers from that used for the population at large and offers some criticism of that logic. Moreover, Ms. Stiglich explores the rationales for probation and parole in general, and examines legal precedent for searches without probable cause of adult probationers and parolees and the relevance of consent to this analysis. To this end, the author discusses the Bravo, Martinez, and …

State Immigration Laws And Federal Supremacy, Karl Manheim

UC Law Constitutional Quarterly

The current debate over the meaning of American federalism bears a striking resemblance to our founding struggle over states' rights. One stage where federalism continues to play out is the regulation of aliens and immigration. For most of our first century, immigration control was a state prerogative. But by the late nineteenth century, the Supreme Court equated immigration with foreign policy, thereby recognizing plenary and exclusive federal authority. This exclusivity operates to negate state power by both standard preemption doctrine and constitutional preclusion. In particular, preclusion forecloses state immigration laws even where Congress is silent since states have never possessed …

Detained Aliens Challenging Conditions Of Confinement And The Porous Border Of The Plenary Power Doctrine, Margaret H. Taylor

UC Law Constitutional Quarterly

Serious problems are endemic to the conditions at INS detention facilities. Some detainees are crowded into understaffed INS detention centers. Others are shuttled off to local jails or private facilities, where the INS seldom inquires about their treatment and they are sometimes subjected to inhumane conditions. Attempts of detained aliens to challenge these conditions under the Due Process Clause generally have been thwarted. This article documents the unconscious evolution of a standard requiring detained aliens to allege "malicious infliction of cruel treatment" or "gross physical abuse" in stating a viable due process claim. This standard provides an incomplete measure of …

Exposing Human Rights Abuses--A Help Or Hindrance To Reconciliation, Richard Goldstone

UC Law Constitutional Quarterly

Despite the advent of the "new world order," international human rights violations remain a widespread problem. The propensities for such abuses are seen most recently through the widespread violence and genocide encountered in Yugoslavia and Rwanda. In an effort to address such abuses, the United Nations established the International War Crimes Tribunal for the Balkan States and Rwanda. The chief goals of the Tribunal are to collect data and try those accused of war crimes. Justice Richard Goldstone, the Tobriner lecturer, is the Prosecutor of the Tribunal.

In his lecture, Justice Goldstone describes how "truth commissions" have been used to …

The Tightening Circle Of Membership, T. Alexander Aleinikoff

UC Law Constitutional Quarterly

No abstract provided.

Supreme Court Voting Behavior: 1994 Term, Richard G. Wilkins, Scott M. Petersen, Matthew K. Richards, Ronald J. Tocchini

UC Law Constitutional Quarterly

This Article attempts, through statistical analysis, to identify the ideological leanings of the United States Supreme Court during the October 1994 Term. Although generally perceived as a conservative institution, the Court this Term adopted a more liberal stance in its approach to First Amendment, statutory civil rights, jurisdictional and federalism issues, and in litigation involving the federal government. Furthermore, in close cases that were decided by a one-Justice majority, the Court overwhelmingly adopted a more liberal result. Justice Kennedy remained the most influential Justice, his vote determining the outcome in over 80% of these close cases. While some of this …

A Tort Only In Violation Of The Law Of Nations, Joseph Modeste Sweeney

UC Law SF International Law Review

The fourth clause of Section 9 of the Judiciary Act of 1789 grants to the federal courts jurisdiction over "a tort only in violation of the law of nations or a treaty of the United States." In the celebrated case of Filartiga v. Pena-Irala, the Second Circuit interpreted this clause as a grant of jurisdiction over any tort in violation of international law committed anywhere in the world. In reaching this conclusion, however, the court did not address the significance of the word "only" or the historical meaning of the word "tort."

This Article delves into the history, law, treaties, …

Japan, Regulatory Compliance, And The Wisdom Of Extraterritorial Social Controls, William S. Laufer, Iwao Taka

UC Law SF International Law Review

United States trade policy allows for a host of extraterritorial initiatives designed to force regulatory reform and corporate compliance in Japan. In this Article, it is argued that such reform and compliance is better achieved by extraterritorial support of the informal, consensual nature of Japanese administrative regulation. Extraterritorial initiatives should promote rather than undermine corporate and industry self-regulation. This position is supported by evidence that the alliances and relations underwriting the socio-cultural environment in Japan can ensure effective corporate self-regulation and compliance if supported.

The Drug Testing Project In International Sports: Dilemmas In An Expanding Regulatory Regime, James B. Jacobs, Bruce Samuels

UC Law SF International Law Review

Over the past two decades testing for performance enhancing drugs has become central to the legitimacy of international sport. A constant battle exists between athletes and coaches seeking to enhance performance at almost any cost and sporting authorities that deem the use of performance enhancing drugs illegal. As more methods of enhancement are discovered, the list of banned substances continues to grow, making enforcement more complex. Recently various sporting bodies, realizing that competition testing is ineffective in detecting the most commonly used drugs, have begun monitoring elite athletes year round and testing them around the world on short notice. For …

Foreign Sovereign Immunity And Saudi Arabia V. Nelson: A Practical Guide, Danny A. Hoek

UC Law SF International Law Review

In any federal judicial proceeding in the United States involving a foreign government or an entity controlled by a foreign government, it is vital to first determine whether that government or entity will be afforded immunity from prosecution under the doctrine of sovereign immunity. If the government or entity qualifies for immunity, they must waive their immunity for the court to have jurisdiction over them.

Prior to 1976, there was considerable turmoil within the United States government over how to distinguish those entities that qualified for immunity from those that did not. Congress responded to this turmoil with the passage …

The Resolution Of International Commercial Disputes Under The Auspices Of The Icc International Court Of Arbitration, Eric A. Schwartz

UC Law SF International Law Review

No abstract provided.

The Sonoma Baylands Project, Laurel Marcus, Marcia Grimm

UC Law Environmental Journal

No abstract provided.

Introductory Remarks, John E. Mccosker

UC Law Environmental Journal

No abstract provided.

The Work Made For Hire Doctrine And California Recording Contracts: A Recipe For Disaster, Joseph B. Anderson

UC Law SF Communications and Entertainment Journal

Recording artists provide their recording or songwriting services pursuant to "work made for hire" clauses present in the vast majority of recording industry contracts. Under the work made for hire doctrine, the record labels can retain ownership in the ultimate artistic creations and thus ensure maximum profits for the labels. However, in 1982 the California Legislature mandated that persons who create works made for hire are deemed employees for purposes of workers' compensation benefits as well as unemployment and disability insurance. As a result, record labels may face substantial liability under California labor laws. At a minimum, it appears that …

Parody (Of Celebrities, In Advertising), Parity (Between Advertising And Other Types Of Commercial Speech), And (The Property Right Of) Publicity - A Substantive And Procedural Path - Through Glitz, Wit, Rap, Suds, And Ink - To A Balanced Constitutional And Common Law Vindication Of Each, Michael E. Hartmann, Daniel R. Kelly

UC Law SF Communications and Entertainment Journal

In 1992's highly controversial White v. Samsung Electronics America, Inc., the United States Court of Appeals for the Ninth Circuit refused to create a parody exception to the common law right of publicity for a parodic advertisement. Almost all of the early legal commentary on White criticized the Ninth Circuit for not having created such an exception, most of it urging an emulation of federal statutory copyright law's fair use exception. In 1993's Cardtoons v. Major League Baseball Players Ass'n, the Northern District Court of Oklahoma similarly refused to create a parody exception to the right of publicity for an …

Software Patents: Myth Vs. Virtual Reality, Jeffrey J. Blatt

UC Law SF Communications and Entertainment Journal

This Article discusses issues concerning the patenting of software-related ideas. It provides a brief history of the law concerning patents related to algorithms up to the Federal Circuit's recent decision in In re Alappat. The Article then discusses various myths related to the lack of availability for software patent protection, the type of companies that are obtaining software patents, copyright protection versus patent protection, unavailability of trade secret protection in conjunction with a patent application, and the enforceability of software patents and other myths.

Reforming Telecommunications Policy In Response To Entry Into Local Exchange Markets, Alexander C. Larson

UC Law SF Communications and Entertainment Journal

Current telecommunications regulation is based on a series of economic assumptions. The author considers these assumptions and analyzes their continued validity, given the emergence of local exchange competition as seen in the Rochester, New York plan. The author discusses entry barriers to local exchange and the effects of the Department of Justice 1992 Merger Guidelines. The author concludes with a summary of policy recommendations arising from entry into local exchange markets and the necessity of future policy reevaluation.

Dolan V. California Coastal Commission, Corey E. Taylor

UC Law Environmental Journal

No abstract provided.

Stop Before You Shoot But Not Before You Destroy, Tara L. Mueller

UC Law Environmental Journal

No abstract provided.