Law Commons^™

Medical Civil Rights: The Exclusion Of Physicians Of Color From Managed Care: Business Or Bias, Rene Bowser

UC Law Journal of Race and Economic Justice

Historically, physicians of color experienced significant barriers in their continued assimilation into the health care profession. Although managed care organizations do not appear to purposefully discriminate against physicians of color, the selection criteria utilized by these networks coupled with underlying biases have resulted in a disproportionate exclusion of minority physicians. By analyzing the norms and practices of managed care organizations, the author highlights possible causes of this disparity. Additionally, after addressing the inadequacy of using current civil rights laws to redress discrimination in the medical market, the author offers several innovative local, state, and federal remedies as potential alternative avenues …

Civil Claims For Uncivilized Acts: Filing Suit Against The Government For American Indian Boarding School Abuses, Andrea A. Curcio

UC Law Journal of Race and Economic Justice

This country's history is replete with evidence that the United States government deliberately caused the deaths of millions of American Indians. What is less well-known is the government's attempt to destroy the American Indian peoples by forcing generations of American Indian children to attend off-reservation boarding schools. In this article, Professor Curcio describes the use of government-run boarding schools as a way to destroy American Indian childrens' connections to their peoples, and ultimately, as a way to destroy the American Indian peoples. She discusses the schools' harsh and deadly living conditions and the schools' destructive impact upon generations of American …

International Criminal Law: Towards New Solutions In The Fight Against Illegal Arms Brokers, Katharine Orlovsky

UC Law SF International Law Review

In many recent and ongoing civil and international armed conflicts, arms brokers have violated United Nations embargos to deliver arms to known human rights violators in conflict zones. This illegal arms traffic significantly contributes to the commission of atrocities. However, arms brokers, who are uniquely difficult to both regulate and prosecute, continue to enjoy broad impunity under existing international and domestic law. International criminal law has developed legal theories and institutions to address impunity in situations of mass conflict. This note examines the feasibility of prosecuting arms brokers under international criminal law, and whether this growing area of law may …

Class Warfare 1988-2005 Over Top Individual Income Tax Rates: Teeter-Totter From Soak-The-Rich To Robin-Hood-In-Reverse, John W. Lee Iii

UC Law Business Journal

The Tax Reform Act of 1986 effected for highest income individuals parity of tax treatment as to ordinary and capital gains income, thus ending the sixty-five year horizontal and vertical inequities described in "The Capital Gains 'Sieve' and the 'Farce' of Progressivity 1921-1986," 1 Hastings Bus. L. J. 1. This article examines the income tax rate wars 1988-2005, which destroyed this parity. During this latter period, political factions developed "fairness" rhetoric and "class warfare" counter rhetoric. This article analyses the cause and effects of the changes to the tax law from 1988-2005.

The Notion Of Trust As A Comprehensive Theory Of Contract And Corporate Law: A New Approach To The Conception That The Corporation Is A Nexus Of Contract, Eli Bukspan

UC Law Business Journal

The concept of trust-- the fulfillment of promises both express and implied-- is at the heart of our social and economic lives. Without it, the simplest of daily interactions would be unduly burdensome, if not impossible altogether. The author offers trust as a comprehensive theory of contract law, which does not merely compel compliance, but encourages it as an expressive and self-reinforcing value. Using recent watershed opinions from the Israeli Supreme Court, the author demonstrates how the good faith principle of contract law can be extended to broader corporate conduct, strengthening a culture of trust. As corporate actions and individual …

Rationalizing Software Patents: Suggestions For A Livable System, Shane Glynn

UC Law SF Communications and Entertainment Journal

In examining the historical development of software as patentable subject matter, the jurisprudence of the Supreme Court and Federal Circuit, the Patent and Trademark Office's regulations and guidelines, and the application of these rules in the legal and business community, this article explores the deficiencies of the current US software patent system. The article argues that by increasing patent examiners' knowledge of computer science and publishing domestic patent applications to allow competitors to search for relevant prior art, the US software patent system can be significantly improved.

I Always Feel Like Someone Is Watching Me: A Technological Solution For Online Privacy, David Goldman

UC Law SF Communications and Entertainment Journal

This article develops the concept for a technological solution to the problem of online privacy. While most proposals endeavor to come to a consensus upon either a common definition or a common value system for privacy, the author instead proposes that the ultimate goal of an automated transaction should simply be to make optimal use of the online market. Rather than define privacy, the government should instead encourage trust, which will result in the maximum benefits for the economy as a whole.

Being Gay In Lubbock: The Equal Access Act In Caudillo, Sarah Orman

UC Law SF Journal on Gender and Justice

The Equal Access Act which prohibits high schools from discriminating among extracurricular clubs on the basis of viewpoint, was originally intended to protect the rights of high school students to hold prayer groups and other religious-oriented meetings on campus. In an unintended (but not unexpected) twist, the Act has expanded from protecting religious expression to ensuring equal access for groups of gay and lesbian students. This Note examines the history and purpose of the Equal Access Act, focusing on a recent case in which a federal district court upheld the decision of Lubbock High School to deny access to members …

Recent Developments In The Debate Concerning The Use Of Foreign Law In Constitution Interpretation, Lisa Sofio

UC Law SF International Law Review

Comparative analysis, the interpretive technique of using foreign and international law to better understand the United States Constitution, may be a valuable tool for modern judges. Legislative proposals and statements made by various members of Congress reveal that Congress is opposed to the judiciary's use of comparative analysis and appears prepared to take drastic measures to prevent judges from looking to foreign law to answer difficult questions. This note explores the propriety and reasons for this response and explores whether comparative analysis has merit as an interpretive tool.

Faulting San Andreas: The Call To Arms For Sensible Regulation Of Violent Video Games, Jessica Williams

UC Law SF Communications and Entertainment Journal

Video game violence has escalated to shocking limits. Murder and sex are glorified in modern games. California Assembly Bill 1179 is the latest attempt to curb the sale of video games encouraging this type of violence. Because it is improbable that current social science research will be able to prove the causal connections necessary to satisfy the Brandenburg standard for regulating free speech, AB 1179 violates the First Amendment rights of California's citizens. In the future, increased parental controls and the Entertainment Software Ratings Board's active role in enforcing compliance with its rating system will be the most effective means …

A Minor Conundrum: Contracting With Minors In Canada For Film And Television Producers, Bob Tarantino

UC Law SF Communications and Entertainment Journal

Concerns surrounding the enforcement of a contract with minors have plagued the entertainment industry, particularly in the areas of film and television. Amidst a confusing hodgepodge of laws, various North American jurisdictions have responded with a series of judicial decisions and legislative initiatives. These changes have increased marketplace certainty for the benefit of film producers and the minors with which they do business. The Canadian province of Ontario, however, remains without the benefit of such a regime of laws, creating uncertainty in Ontario's film and television marketplace. If Ontario wishes to develop as a major film and television production center, …

The Cultural Significance Of Wildlife: Using The National Historic Preservation Act To Protect Iconic Species, Ingrid Brostrom

UC Law Environmental Journal

No abstract provided.

Sakura, Mariel Kusano

UC Law Environmental Journal

No abstract provided.

Lilypads With Flower, Amazon, Kristen Boney

UC Law Environmental Journal

No abstract provided.

Mutual Funds Scandals - Comparative Analysis Of The Role Of Corporate Governance In The Regulation Of Collective Investments, Jerry W. Markham

UC Law Business Journal

This article undertakes a comparative analysis of the mechanisms used to regulate collective investments. The article first traces the growth and development of mutual funds and their regulation and concludes that the corporate governance model for mutual funds has failed. The article then examines alternative regulatory schemes for collective investments, including hedge funds, commodity pools, common trust funds, collective investment funds for pensions, endowments, and insurance company reserves. The article concludes that alternative regulatory structures would serve at least as well as the current regulatory structure for mutual funds, which has proved to be overly costly, complex, and ineffective.

Maternal Wall Discrimination: Evidence Required For Litigation And Cost-Effective Solutions For A Flexible Workplace, Claire-Therese D. Luceno

UC Law Business Journal

The number of married women with childcare responsibilities who joined the workforce tripled in the last three decades. The American workplace has failed to keep pace with this development and, as a result, these women face a barrier known as the "maternal wall," defined as discrimination against working mothers and caregivers which results in excluding them from desirable employment. As a result of this change in the American workforce, maternal wall litigation has increased. Although plaintiffs initially had difficulty in prevailing on claims of maternal wall litigation due to strict requirements for comparator evidence, plaintiffs have seen increased success as …

Finding The Contract In Contracts For Law, Forum And Arbitration, William J. Woodward, Jr.

UC Law Business Journal

Provisions specifying the choice of law or forum in adhesive contracts can have a profound, if not decisive, effect on the outcome of consumer litigation. But whose law governs whether these clauses or the contract itself are binding on the parties? The author presents an analytical framework for separating the conflicts and contracts issues, and then applies this expanded analysis to an important recent California case that hinges upon the court's interpretation of these questions.

Good News Investors - You've Got A Financial Expert On The Board - The Bad News - It Doesn't Mean Anything, Jeffrey M. Mcfarland

UC Law Business Journal

In light of the portion of the Sarbanes-Oxley Act that requires disclosure of whether a reporting company has an audit committee financial expert, the author examines a representative sample of more than 200 publicly-filed proxy statements to determine how those companies have addressed the financial expert requirement. Based on that examination, the article proposes modifications to the SEC's rules on audit committee financial experts as a means to better achieve the Congressional goal of improving the audit committee's oversight of the financial reporting process.

Geographic Competition And Collusion In Duopoly, Charles H. Steen, Kevin S. Marshall

UC Law Business Journal

Although geographic market divisions by horizontally competitive firms are generally subject to per se condemnation, such presumptive condemnation may be inappropriate in duopoly under specific but reasonable assumptions. This article demonstrates that market division agreements may actually enhance societal surplus under certain market conditions. Incorporating conventional game theory within a geometricspatial analysis, the authors question the propriety of a per se approach to antitrust liability in such situations.

Avoiding Blurred Lines: The Computation Of Damages In Rule 10b-5 Securities Class Action Lawsuits In The Ninth Circuit And A Proposal For A More Sensible System, Jeffrey M. Goldman

UC Law Business Journal

Rule lOb-5 of the Securities and Exchange Act of 1934 has assumed greater importance in the wake of recent corporate scandals. There is great value, therefore, in reexamining the way courts calculate damages in Rule 1Ob-5 actions. The author begins with a brief primer on this important component of securities law. He then explains how damages are determined by Ninth Circuit federal courts in Rule 1Ob-5 actions. Finally, the author argues that statutory fines should replace the use of vague and complex factors to determine damages in Rule 1 Ob-5 actions.

The Legal Character Of Private Codes Of Conduct: More Than Just A Pseudo-Formal Gloss On Corporate Social Responsibility, Veronica Besmer

UC Law Business Journal

Corporate codes, nothing more than statements that define a corporation's own best behavior, have become ubiquitous in today's business reality that witnesses ever-louder demands for greater corporate accountability. However, the codes' enforceability is uncertain, as they lack the statutory liability or the jurisdictional nexus in case of transnational enterprises. Still, consumers, who are increasingly socially and environmentally conscious, often reward any voluntary declaration of corporate social responsibility. This article outlines the current forms of regulations and reviews some legal enforcement theories. The author concludes that quasi-formal enforcement mechanisms such as stakeholder pressure and greater consumer demand for responsible corporate behavior …

Section 1032: Are We There Yet, Neil R. Blecher

UC Law Business Journal

This paper discusses various issues related to Section 1032 of the Internal Revenue Code, including the proper scope and applicability of Section 1032 necessary to ensure that economically equivalent transactions are treated in a consistent manner. Among other topics, the paper provides a summary of legislative enactments and judicial and administrative rulings related to Section 1032 and a review of the general scope and applicability of the section in current tax practice. The paper also provides an analysis of attempts to provide for a workable definition of "money or other property in exchange for stock" within the meaning of Section …

Revisiting Austin V. Loral: A Study In Economic Duress, Contract Modification And Framing, Meredith R. Miller

UC Law Business Journal

Austin Instrument, Inc. v. Loral Corp. is a favorite among Contracts casebooks because the New York Court of Appeals held that it was a "classic" example of economic duress. The close division of judicial opinion suggested, however, that there was a more complex story behind the Court of Appeals' recitation. Indeed, revisiting the case reveals a rich and intricate story. Why were Austin and Loral litigating so fiercely over roughly $22,000? Was it possible that the threat of Austin, a small, privately held company, could coerce Loral, a large, publicly traded company? What influence did the conflict in Vietnam have …

The Public-Private Security Partnership: Counterterrorism Considerations For Employers In A Post-9/11 World, Andrew P. Morriss

UC Law Business Journal

Employers who employ both Americans and non-citizens in America, as well as those who employ either Americans or non-citizens overseas, will face a wide range of demands for cooperation with counterterror agencies, choices about employment policies that affect counterterror efforts, and concerns by employees about the impact of counterterror measures on their employment. This Article surveys some of the less immediately obvious issues that employers need to consider in adjusting to the post-9/1 1 environment-an environment in which counter-terror operations have become the nation's highest government priority.

Determinants Of The Settlement Amount In Securities Fraud Class Action Litigation, John D. Finnerty, Gautam Goswami

UC Law Business Journal

This article identifies the factors most responsible for determining the settlement amount in securities fraud cases. It also develops a settlement model that incorporates these factors. This article analyzes a sample consisting of 525 securities fraud class action settlements that were reached between 1994 and 2005. It identifies the main drivers of the observed settlement amounts and develop a settlement model that explains more than fifty-six percent of the settlement amounts in terms of these settlement drivers. The settlement model should be useful to counsel or interested parties for gauging a reasonable settlement amount consistent with past experience. It should …

Employers Beware: The I-9 Form: Verifying Identity And Identity Documents In The Employment Context, Jason Korosec

UC Law Business Journal

Verification of identity has taken on new importance in a post 9/11 environment. This article discusses employers' obligation to verify the identification of their employees and the technical problems with identity verification employers face under current approaches. Attempts by the government to resolve these issues will meet resistance from both privacy advocates and liberty defenders. Understanding the issues with the current state of documentation of identity will enable employers to make more informed decisions about who they are hiring, particularly if the analysis is completed prior to the hiring decision. For the time being, the 1-9 form and associated process …

Valuing Corporations For Estate Tax Purposes: A Blount Reappraisal, Adam S. Chodorow

UC Law Business Journal

This article explores a "recurring issue of asset valuation for estate tax purposes," which the Eleventh Circuit purported to resolve in Estate of Blount v. Commissioner. The broad question is how one should value a decedent's shares in a corporation where those shares are subject to a buysell agreement that is either: (1) disregarded for estate tax purposes, or (2) omits the price of the shares it covers. The specific issue is how one should account for insurance proceeds a corporation receives on account of a decedent's death when those proceeds are offset by a corresponding obligation to redeem the …

The Justice Of Recovery: How The State Can Heal The Violence Of Crime, Linda G. Mills

UC Law Journal

A longstanding assumption of the criminal justice system is that victims benefit in some way from the prosecution and punishment of the person who caused them harm. This Article, however, argues that victim healing involves more than punishing the offender, and that by rethinking the roles victims perform in the criminal justice system, we may provide them with a more comprehensive menu of options to facilitate their recovery from crime. The societal goals of punishment and accountability and the individual desire for healing are not mutually exclusive. Incorporating recovery approaches from both the science of victimology and theories of restoration …

Beyond Moody: A Re-Examination Of Unreasonably Small Capital, Lee B. Shepard

UC Law Journal

Fraudulent conveyance laws may end up back in the spotlight as the economy slows following a period of sharply increased leveraged buyout activity and aggressive lending tactics. Since participants in leveraged transactions are more sophisticated than in the past, plaintiffs may focus on unreasonably small capital, rather than insolvency, to show that a debtor engaged in a constructively fraudulent conveyance or transfer. Unfortunately, unreasonably small capital is an underdeveloped legal concept, particularly with regard to standards by which courts can determine whether a transaction left a debtor with unreasonably small capital.

The leading case on the subject, Moody v. Security …

Reconceptualizing Due Process In Juvenile Justice: Contributions From Law And Social Science, Mark R. Fondacaro, Christopher Slobogin, Tricia Cross

UC Law Journal

This Article challenges the accepted wisdom, at least since the Supreme Court's decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. The Court's reliance on due process means that the central goal in juvenile justice is fundamental fairness, which does not have …