Law Commons^™

Disclosure Under Federal Rule Of Civil Procedure 26(A)--Much Ado About Nothing, Charles W. Sorenson Jr.

UC Law Journal

Tension between open discovery practice under the Federal Rules of Civil Procedure and the adversarial tradition of the American justice system has existed for decades. Efforts to curb perceived discovery abuse or misuse, in addition to calls for litigation system reform, have resulted in amendments to several Federal Rules. The controversial Rule 26(a), which took effect in December 1993, requires litigants to automatically disclose information on witnesses and documents "relevant to disputed facts alleged with particularity" and potentially revolutionizes traditional discovery practice.

In his Article, Professor Sorenson examines the history of discovery and previous attempts to reform discovery practice. He …

Report's Draft For The Working Group On Principles To Use When Considering The Federalization Of Criminal Law, Sara Sun Beale

UC Law Journal

No abstract provided.

School Choice Policy And Title Vi: Maximizing Equal Access For K-12 Students In A Substantially Deregulated Education Environment, Stuart Biegel

UC Law Journal

Support for public school choice programs has grown significantly throughout the 1990s. The ideal of school choice envisions a world where families are no longer restricted to public schools in their designated districts, instead choosing from a wide range of schools in a large geographic area. However, a detailed examination of school choice reveals that many of the largest and most wide-ranging plans significantly infringe upon the equal educational opportunity rights of minority students and students from low income families. Two significant barriers are likely to impede the equal access rights of such students: transportation requirements and restrictive admissions practices. …

Fraud-On-The-Market Theory In State Law Securities-Fraud Suits: Mirkin V. Wasserman And An Examination Of Market Reliance Principles In The Common Law Of Deceit, James I. Jaconette

UC Law Journal

In Mirkin v. Wasserman, the California Supreme Court refused to apply the "fraud-on-the-market" theory of market reliance in a securities fraud class action brought under state law. Although this theory had previously been acknowledged under federal securities laws, the Mirkin court claimed that the California law of deceit required proof of actual reliance in all cases. The court also asserted that if it were to recognize this theory, the number of frivolous securities fraud suits would increase because of the availability of punitive damages under state law.

In his Note, the author explains that principles of market reliance (a form …

The Rhetoric Of Torts: How Advocates Help Jurors Think About Causation, Reasonableness, And Responsibility, Neal R. Feigenson

UC Law Journal

How do jurors in accident cases think about negligence, and to what extent do their conceptions conform to the law? This Article examines closing arguments in several accident cases, showing the extent to which advocates appeal to the knowledge structures and inferential heuristics that people use to judge causation and responsibility in everyday life. Through argument structure, point of view, verb tense, metaphor, and other linguistic devices, attorneys construct a rhetoric that combines legal rules with the tools of ordinary judgment. The conceptions of negligence implicit in these arguments occasionally conflict with the law; the Article indicates the cognitive and …

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 …

Mapping The Labyrinth Of Scientific Evidence, David L. Faigman

UC Law Journal

In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court replaced the general acceptance standard of Frye v. United States, used in assessing the admissibility of expert testimony, with the validity standard of Daubert. The Daubert Court directed judges to actively evaluate scientific evidence and placed the initial burden of demonstrating validity of scientific evidence on the proponent of the evidence and the initial responsibility for evaluating that validity on the judge. This directive to judges, who are now expected to become sophisticated consumers of science, raises a number of questions and potential difficulties about the scope of this …

Software Copyrights As Loan Collateral: Evaluating The Reform Proposals, Patrick R. Barry

UC Law Journal

Software companies rely heavily on intellectual property, particularly copyrights, for loan collateral. For many young firms, copyrights represent their only valuable asset. Two sources of law, the Copyright Act and the Uniform Commercial Code (U.C.C.), both address the perfection of security interests in such collateral. Until recently, lenders frequently filed under both systems to ensure perfection of security interests in copyrights and copyright-related receivables. In In re Peregrine, a federal judge sought to end the uncertainty by holding that the Copyright Act preempts the U.C.C. in such perfection situations.

In his Note, the author summarizes existing criticisms of the Peregrine …

Reporters' Draft For The Working Group On Federal-State Cooperation, Harry Litman, Mark D. Greenberg

UC Law Journal

No abstract provided.

Confronting The Question Of Conscience, Deval Patrick

UC Law Journal

No abstract provided.

Security For Interlocutory Injunctions Under Rule 65(C): Exceptions To The Rule Gone Awry, Erin Connors Morton

UC Law Journal

Federal Rule of Civil Procedure 65(c) requires applicants for preliminary injunctions or temporary restraining orders to post security before the injunction will issue. Determining the amount of the security to be posted is left to the judge's discretion under the Rule. While many circuits have carved out narrow exceptions to the Rule that allow waiver of the bond, other circuits have held the bond itself to be fully within the district court's discretion. Waiver of the bond leaves the defendant without recourse if the court later determines that the defendant was wrongfully enjoined.

In her Note, the author examines the …

Main Line V. Basinger And The Mixed Motive Manager: Reexamining The Agent's Privilege To Induce Breach Of Contract, Stephen P. Clark

UC Law Journal

In Main Line Pictures, Inc. v. Basinger, a California judge dismissed a tortious inducement claim against the agency that allegedly advised actress Kim Basinger to breach a film contract. The dismissal was based on the "manager's privilege" that applies when an agent motivated by a principal's best interests advises the principal to breach a contract. In the Ninth Circuit and in California, the privilege has been extended to cover an agent who considered the principal's interests, but nevertheless appeared to have acted primarily in the agent's own interest.

In his Note, the author contends that the subtle expansion of the …

A Dead Man's Tale: Regulating The Right To Bequeath Sperm In California, Lisa M. Burkdall

UC Law Journal

In 1993 California courts considered a case of first impression in America: whether a man has the right to bequeath his sperm for the purpose of reproduction after his death. Hecht v. Superior Court (Kane) established that a man's "decision- making authority" over the use of his sperm for procreation suffices to constitute a property interest under California law. Accordingly, a man may direct the disposition of his frozen semen after his death and that semen may be used to father a child. While Hecht received a warm welcome from men's rights groups and bioethics scholars, criticism focused on the …

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 …

Prosecutorial Discretion And The Federalization Debate, Jamie S. Gorelick, Harry Litman

UC Law Journal

No abstract provided.

Too Many And Yet Too Few: New Principles To Define The Proper Limits For Federal Criminal Jurisdiction, Sara Sun Beale

UC Law Journal

Congress has responded to increasing public concern about violent crime by expanding the scope of the federal government's criminal authority. The 1994 Crime Bill continued this expansion by adding many new offenses and significantly broadening existing ones, resulting in a total of more than 3,000 federal crimes.

In her Article, Professor Beale argues that there are both too many federal criminal prosecutions and too few: too many, as measured by the present and future capacity of the federal courts and by the proper balance of the federal and state governments in handling criminal matters; and too few, because federal authorities …

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.

The Race/Class Conundrum And The Pursuit Of Individualism In The Making Of Social Policy, Jennifer M. Russell

UC Law Journal

Backlash against black civil rights gains and recent public debates over the determinants of black poverty have fueled an advocacy for class-conscious social policies. Professor Russell examines the advocacy for class-conscious policy initiatives, and argues against the use of class as a basis for making social policy. First, Professor Russell rejects a notion of class that focuses on wealth and income characteristics. Professor Russell maintains that class is better analyzed in terms of relations unfolding over a period of time and oriented by individualistic democratic capitalism and race. Individualistic democratic capitalism emphasizes opportunity and relative equality for the individual, but …

Gay Rights And Religion: A Doctrinal Approach To The Argument That Anti-Gay-Rights Initiatives Violate The Establishment Clause, Marc L. Rubinstein

UC Law Journal

In the past several years, fundamentalist Christian and "family" organizations have proposed anti-gay-rights initiatives on state and local ballots that would invalidate laws outlawing discrimination based on sexual orientation and would prohibit state legislatures or city councils from passing such laws in the future. This Note argues that these initiatives violate the Establishment Clause of the First Amendment because they have the impermissible purpose and effect of endorsing a religious viewpoint.

The author argues that the Supreme Court's Establishment Clause jurisprudence allows an inquiry into impermissible religious motivations for a law, even when its defenders profess a legitimate secular purpose. …

Supreme Court Opinions--Style And Substance: An Appeal For Reform, Ray Forrester

UC Law Journal

The inherent ambiguity of language vests in the United States Supreme Court considerable power to shape the Constitution and laws through interpretation. By exercising that power, the Court profoundly affects the lives of American citizens. But the Court's opinions are largely incomprehensible to the general public because of obscure language, daunting length, confusing structure, and lack of consensus. The author makes an impassioned appeal to reintroduce simplicity into Supreme Court opinions.

Economic Theory Applied To Civil Forfeiture: Efficiency And Deterrence Through Reallocation Of External Costs, Catherine Cerna

UC Law Journal

Punishment for drug crimes includes not only penal sanctions, but economic sanctions in the form of property forfeiture as well. Based on broad statutory language, the government appears to seize property in amounts disproportionate to the crime committed. The author contends that forfeiture lacking proportionality risks violating the Eighth Amendment's prohibition of "excessive fines" and distributes wealth in an economically inefficient manner.

The United States Supreme Court mandated an Eighth Amendment proportionality inquiry in civil forfeiture cases in the 1993 case of Austin v. United States. This Note proposes that courts imposing forfeiture abide by this mandate by engaging in …

What We Do Not Doubt: A Critical Legal Perspective, Louis E. Wolcher

UC Law Journal

This Essay challenges the reader to consider the effect on legal thinking, writing, and judging of "what we do not doubt." The Essay emphasizes the importance, especially in law, of acknowledging the presence of what we do not doubt. For instance, consider the author's discussion of a "point of view"-a point of view is "not a state of mind, but rather the point of view from which I do not doubt my point of view. A case, including a result that is thought about, is something that can be spoken about. But I cannot think or speak about the point …

Advanced Micro Devices V. Intel Corp. And Judicial Review Of Commercial Arbitration Awards: When Does A Remedy Exceed Arbitral Powers, Jessica T. Martin

UC Law Journal

Commercial arbitration boasts the advantages of flexibility, efficiency, and finality. In an effort to make decisions by arbitrators binding and final, legislators have provided only limited grounds for judicial review of arbitral awards. However, arbitral choice of remedy has proven to be fertile ground for attempted judicial activism. A recent example is the California Court of Appeal's decision in Advanced Micro Devices v. Intel Corp., which was subsequently reversed by the California Supreme Court. An analysis of judicial decisions regarding how arbitrators may fashion relief reveals imprecise standards that have proven to be contradictory and unworkable.

This Note explores the …

The Judicial Philosophy Of Roger Traynor, John W. Poulos

UC Law Journal

Roger Traynor served on the Supreme Court of California for nearly thirty years, including more than five years as Chief Justice of California. He is arguably one of the great judges and legal reformers in the history of the common law. This Article, written by the inaugural Roger Traynor Summer Research Professor at Hastings College of the Law, focuses on Justice Traynor's judicial philosophy as found in twenty-four articles that he wrote between 1956 and 1980.

The Article begins with a brief overview of the major developments in American legal process theory, first reviewing traditional views of the judicial process, …

The Politics Of Facts: "The Illusion Of Certainty", Wendy M. Rogovin

UC Law Journal

This article analyzes the role played by facts in the process by which Congress makes law and the judiciary reviews those laws. Because little attention has been paid to this area by courts, Congress, and scholars, major federal legislation, including the Gun-Free School Zones Act of 1990, the Policy Concerning Homosexuality in the Armed Forces, and the Anti Car Theft Act of 1992, has been enacted without what the Supreme Court and some federal courts consider to be a proper factual foundation.

Requiring that Congress articulate a factual basis for its legislation encroaches on its lawmaking autonomy. Yet, insulating the …

Professor Warren Shattuck, Leo P. Martinez

UC Law Journal

No abstract provided.

The Antitrust Analysis Of Network Joint Ventures, Thomas A. Piraino Jr.

UC Law Journal

This Article explains the current confusion in the federal courts' antitrust analysis of network joint ventures and proposes a means by which that confusion may be resolved. The courts have been unable to determine effectively the circumstances under which access to essential network joint ventures should be compelled. The Article proposes a new approach by which the judiciary can regulate access to network joint ventures.

Tie proposed approach relies on presumptions and burdens of proof to simplify the courts' analysis. Instead of the complex market power inquiry required by the rule of reason, courts will be able to focus on …

Catellus Development Corporation V. United States: A "Solid" Approach To Cercla "Arranger" Liability, Or A "Waste" Of Natural Resources, Gregory A. Robins

UC Law Journal

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) authorizes and finances the cleanup of inactive hazardous waste sites, imposing cost liability on responsible parties. Since the Act's passage in 1980, courts and commentators alike have criticized the statute as a whole as being poorly drafted. This Note focuses on CERCLA section 107(a)(3), a particularly vague provision that imposes liability on those who arrange for the disposal or treatment of a hazardous substance. Left without a statutory definition of the term "arrange," the federal courts have been unable to develop a coherent standard for determining the scope of "arranger liability." …

All Professors Create Equally: Why Faculty Should Have Complete Control Over The Intellectual Property Rights In Their Creations, Sunil R. Kulkarni

UC Law Journal

Most universities treat professors who create copyrightable works differently than professors who create patentable inventions with regard to intellectual property (IP) rights. Universities generally allow professors who create copyrightable works to retain full control over their works. Conversely, professors who create patentable inventions are contractually obligated to assign their inventions to the university and receive only a small percentage of any royalties generated by their inventions, while the university has full control over marketing the inventions. This Note argues that professors should own all IP rights in their creations, whether the creations are copyrightable or patentable. Faculty contracts should reflect …