Law Commons^™

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.

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 …

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.

Rethinking The Law Of Creditors' Rights In Trusts, Robert T. Danforth

UC Law Journal

The United States is experiencing a quiet revolution in the law of trusts. In an effort to compete with the trust laws of offshore jurisdictions, in recent years several states have enacted legislation permitting so-called asset protection trusts, through which property owners can establish funds for their own benefit while sheltering those funds from the claims of creditors. These recent developments reverse the traditional American rule, which views such trusts as contrary to public policy and therefore ineffective as against creditors' claims. The developments have also inspired pointed academic criticism. This Article approaches the topic of creditors' rights from a …

Federalism And The Rehnquist Court, Calvin Massey

UC Law Journal

The conventional wisdom is that the Rehnquist Court has a federalism agenda-restricting the scope of federal legislative power and augmenting state power to ignore federal law-that it is implementing Term by Term. In this Article Professor Massey challenges that view, arguing that the localist bias of the Rehnquist Court's federalism is far less monolithic than is typically assumed. Of course it is true that the Rehnquist Court has used judicial review in important ways to increase state autonomy and limit federal legislative power. The scope of state freedom from regulation under the commerce clause has broadened; the deference paid by …

Long On Substance, Short On Process: An Appeal For Process Long Overdue In Eyewitness Lineup Procedures, Michael R. Headley

UC Law Journal

Eyewitness identifications play an important role in the criminal justice system. However, the procedures surrounding these identifications are fraught with potential for error, and the Supreme Court has recognized the "vagaries of eyewitness identification." Over the past thirty years, researchers have established a considerable body of evidence demonstrating that simultaneous lineup procedures result in greater error than sequential lineups. Nevertheless, most law enforcement agencies persist in utilizing the simultaneous lineup procedure. This Note argues that the Due Process Clause mandates the implementation of sequential lineups on the basis of both a moral and an historical reading of the phrase "due …

Flawed Foreign Policy: Hypocritical U.S. Attitudes Toward International Criminal Forums, Joshua B. Bevitz

UC Law Journal

International criminal justice is on the verge of making a great leap forward. The 1998 Rome Treaty for an International Criminal Court [ICC], a treaty which creates a permanent international criminal court empowered to prosecute individuals accused of genocide and war crimes, is expected to go into effect by the end of 2002, when many believe the necessary sixty ratifications will be achieved. Unlike the majority of her allies, the United States is adamantly opposed to the ICC. In fact, Congress has passed legislation aimed at reducing the effectiveness of the ICC because the ICC is believed by the United …

What's In A Name? "Nuclear Transplantation" And The Ethics Of Stem Cell Research, Margaret R. Mclean

UC Law Journal

In 1997, California appointed an Advisory Committee to evaluate the medical, ethical, and social implications of "human cloning" for reproductive and non-reproductive purposes. This Essay, written by a member of the Advisory Committee, extends the conversation begun in the report, "Cloning Californians?" about the ethics of "non-reproductive human cloning" focusing on language, science, societal informed consent, and social justice.

Cloning Californians? Report Of The California Advisory Committee On Human Cloning, Henry T. Greely

UC Law Journal

No abstract provided.

"Public Use" And The Original Understanding Of The So-Called "Takings" Clause, Matthew P. Harrington

UC Law Journal

Eminent domain has evolved to encourage almost every conceivable type of economic development. In response, opponents have argued that the proposed takings are not for a "public use" as that term is used in the Fifth Amendment. They argue that "public use" was intended to operate as a substantive limit on government takings. Part I of this Article will explore the civil law theories that inform most modem judicial and scholarly commentary on eminent domain and the confusion that has resulted from this relatively recent misreading of the constitutional history and text. However, judicial supervision of legislative expropriations would have …

Durational Residency Requirements For In-State Tuition: Searching For Access To Affordable Higher Learning, Lawrence J. Conlan

UC Law Journal

With the annual costs of earning a college degree in the United States swelling, the relative lower cost of a public education is precious. State residents save thousands of dollars a year by enrolling at a public university in their home state. On the other hand, non-residents, even those who wish to become residents, must pay inflated "out-of-state" prices, while receiving the same education. While non-residents may eventually gain the benefits of residency, including reduced tuition rates, the cost differential until then is often substantial. In California, depending on a student's individual taxpayer status, an out-of-state student may never gain …

Due Process, Rule 23, And Hybrid Classes: A Practical Solution, Robert M. Brava-Partain

UC Law Journal

Courts and litigants alike face unique challenges when confronted with a class seeking both legal and equitable relief, a so-called hybrid class. Typically, these types of classes raise Due Process, Seventh Amendment and rule-based concerns that are not easily managed. The Supreme Court has declined to decide the issue directly and Circuit Court cases have been less than consistent. The author pieces together the various ways that courts have dealt with hybrid classes and proposes an approach that will meet the needs of both litigants and judges.

Satellite Tracking And The Right To Privacy, Aaron Renenger

UC Law Journal

The proliferation of location services brought on by technology like the Global Positioning System promises to bring new convenience to our lives. But this new technology also brings with it an all-toofamiliar problem-how to ensure personal privacy. Some consumer advocates have referred to the technology as "digital dog tags" and warned that location information will be sold to third parties such as aggressive advertisers or employers. This Note concludes that the torts that currently protect privacy offer very little protection to consumers whose location information is misused by third parties. Further, recent legislation passed to protect the privacy of consumer …

The Constitutionality Of New Contempt Powers For Federal Magistrate-Judges, Mark S. Kende

UC Law Journal

Federal magistrate-judges have gained increasing amounts of power and authority within the federal court system. This is certainly helpful given the heavy docket that most Article III federal district judges maintain. Recently, however, legislation went into effect that gave magistrates contempt powers, including the authority to hold an attorney or party in contempt through summary proceedings. This Article examines the constitutionality of this granting of contempt powers to non-Article ITI judges. It concludes that the United States Supreme Court would likely rule unconstitutional the granting to magistrates of summary contempt authority. However, the Court would likely uphold these contempt powers …

Parenthood By Pure Intention: Assisted Reproduction And The Functional Approach To Parentage, Richard F. Storrow

UC Law Journal

This Article articulates a theoretical foundation for extending the privilege of intentional parenthood to all individuals, regardless of their marital status. Noting the failure of traditional methods of defining parentage to resolve the parentage issues arising from the use of assisted reproduction, this Article turns to recently enacted and proposed statutory provisions that clearly define intentional parenthood but reserve the status to married couples alone. Taking issue with the exclusionary criteria of these provisions, this Article aligns the emerging doctrine of functional parenthood with current theories in support of intentional parenthood to demonstrate that planning and preparing for the birth …

Cardboard To Concrete: Reconstructing The Texas Colonias Threshold, Roderick R. Williams

UC Law Journal

Third world diseases and general squalor have run rampant in the United States-Mexico border area, particularly in Texas. The problems facing residents in Texas colonias-developments often characterized by substandard housing including a lack of access to water and wastewater facilities-gained attention in Texas in the mid and late 1990s. However the Texas legislature and state and federal programs have not successfully solved the shocking problem. This note reviews the current state of Texas colonias, the conditions that allowed Texas' colonias to proliferate, and recent efforts to both halt the growth of colonias and meliorate the difficulties that current residents face …

The Politics Of (Evidence) Rulemaking, Hastings Law Journal

UC Law Journal

Recent changes to federal evidence law, such as new rules on the admissibility of a defendant's prior sexual conduct and amendments to the rules regarding expert testimony, have highlighted the political aspects of procedural rulemaking. This panel grappled with questions such as: Who should make the evidence rules-the judiciary, the legislature, the executive? What role should the practicing bar, law professors and the general public play in the creation of the rules of evidence? What is the proper function of the Federal Rules of Evidence Advisory Committee-to codify case law, to develop rules and amendments to respond to criticism of …

Giving Codification A Second Chance--Testimonial Privileges And The Federal Rules Of Evidence, Kenneth S. Broun

UC Law Journal

The draft Federal Rules of Evidence proposed to Congress in 1972 contained a set of rules governing privileges. After a storm of protest over both the concept of codified federal privilege rules and the content of the drafted rules, Congress excluded the proposed privilege rules from its 1975 enactment of the Federal Rules of Evidence. It substituted current Rule 501, which provides for privileges to be governed by the state law of privilege in diversity cases and the "principles of the common law" in all other cases.

This Article traces the legislative history of the Federal Rules of Evidence with …

Advisory Committee On The Federal Rules Of Evidence: Tending To The Past And Pretending For The Future?, Paul R. Rice

UC Law Journal

This Article characterizes the history of the Advisory Committee on the Federal Rules of Evidence as disappointing. It argues that too often, over too long a period of time, the Advisory Committee has neglected its stewardship responsibilities and the blatant inadequacies of the codified evidence rules. As a consequence, significant problems have gone unattended as the Committee waits to see if the judges can solve the problems their rules have created.

The article notes that some concepts created in the codified evidence rules have proven to be problematic, if not completely inadequate, but there has been no willingness to re-examine …

Analyzing "The Politics Of (Evidence) Rulemaking", Eileen A. Scallen

UC Law Journal

The creation and interpretation of evidence rules is a burgeoning area for evidence scholarship. Recent changes to federal evidence law, such as the addition of rules on the admissibility of a defendant's prior sexual conduct, and the amendments to the rules regarding expert testimony, have highlighted the political and controversial aspects of procedural rulemaking. Professor Scallen, Chair of the Evidence Section of the American Association of Law Schools, was responsible for organizing the panel on "The Politics of [Evidence] Rulemaking." The panel addressed the following questions: who should make the evidence rules-the judiciary, the legislature, the executive? What role should …

After Orange County: Reforming California Municipal Bankruptcy Law, Frederick Tung

UC Law Journal

Because of federal Constitutional concerns, a municipal entity may resort to federal bankruptcy protection only with the authorization of its state. Federal law requires that a municipality be "specifically authorized" under state law to file for bankruptcy protection. Existing California law provides fairly broad authorization for its municipalities, but the statute is in need of both technical and substantive revision. After discussing Constitutional concerns and surveying other states' approaches to municipal bankruptcy authorization, this Article recommends a system of discretionary access, in which the governor holds discretionary power to approve, disapprove, or condition a municipality's access to bankruptcy.

Is There A Constitutional Right To Clone, Cass R. Sunstein

UC Law Journal

Recent scientific innovations, and proposed legislation have raised - questions about the nature of the constitutional right to reproductive freedom, and in particular about whether there is a constitutional "right to clone." This Essay urges that as a matter of substantive due process, rationality review is probably appropriate, and that restrictions on both reproductive and therapeutic cloning would and should survive constitutional scrutiny. At the same time, many of the arguments for banning both forms of cloning are based on ignorance, myths, and speculation. It is extremely important to distinguish between reproductive and nonreproductive cloning, and it is equally important …

What's So Strange About Human Cloning, Radhika Rao

UC Law Journal

In this Essay, Professor Radhika Rao, explores three reasons for the popular repugnance toward human cloning and their consequences for the question whether or not there is a constitutional right to clone a human being. She argues that, although the impulse to ban human cloning may stem from the wrong reasons, human cloning may still be banned for the right reasons.

Public Policy Crafted In Response To Public Ignorance Is Bad Public Policy, Lee Silver

UC Law Journal

No abstract provided.

Seeing Double: The Ethics Of Human Cloning, Margaret R. Mclean

UC Law Journal

No abstract provided.

Placing A Moratorium On Research Cloning To Ensure Effective Control Over Reproductive Cloning, Alexander Morgan Capron

UC Law Journal

No abstract provided.

Human Cloning: Insights From Twins And Twin Research, Nancy L. Segal

UC Law Journal

No abstract provided.