Law Commons^™

Closing The Tax Gap: Encouraging Voluntary Compliance Through Mass-Media Publication Of High-Profile Tax Issues, Elizabeth Branham

UC Law Journal

In 2001, the IRS estimated the gross tax gap was approximately $345 billion dollars. Each dollar not collected represents lost revenue for the federal government, the collection of which would be contributed to federally-funded public works. Within the tax gap, underreporting of individual income represented over half of uncollected revenue. Among that group of noncompliant taxpayers, most are generally not subject to third-party reporting and are therefore capable of choosing to file or to evade. This Note discusses the impact of high-profile tax prosecutions on social norms and values as an avenue to address and encourage voluntary compliance.

The Water Nectar, And The Rocks Pure Gold: Finding A Legal Structure To Facilitate Necessary Change In California's Jewel, The Delta, Kakuti M. Lin

UC Law Journal

The Sacramento-San Joaquin Bay-Delta region is unique in terms of its natural resources and disproportionate economic impact on the State of California. Several aspects of its history have also given rise to unusual legal problems affecting property rights in both land and water. The fragility of the current levee and water supply systems, along with the many different public and private parties with interests at stake, combine to make an untenable situation that has been difficult to change. This Note explores some possible legal consequences of the way in which the region developed, and describes property rights transfer systems applicable …

Replacing The Estate Tax With A Reimagined Accessions Tax, Joseph M. Dodge

UC Law Journal

This Article proposes replacing the federal estate and gift tax system with an accessions tax. An accessions tax is a tax, at progressive rates, on the aggregate lifetime gratuitous receipts of an individual in excess of a specified exemption. The main thesis of this Article is that an accessions tax is not simply a reverse image of the current estate tax system, but is significantly different both in purpose and effect. An accessions tax should be an easier pill to swallow than the estate tax, because it is a tax on the unearned income (accessions to wealth) of individuals. The …

Heller And Constitutional Interpretation Originalism's Last Gasp, Rory K. Little

UC Law Journal

The Author posits that the Supreme Court's opinions in Heller are "thick and pure" originalism: greater historical detail than ever before, and virtually no other basis is offered for the decision. But is this "originalism's last gasp"? That is, a deep and desperate attempt to give life to originalism, before it expires? Even as the majority proclaims textual originalism more loudly and purely than ever before, it ultimately-and the Author argues necessarily-leaves originalism behind. By summarily endorsing, without any historical support, the currently existing prohibitions on firearms possession by various categories of people or in various "sensitive" places, the Court …

Heller, Citizenship, And The Right To Serve In The Military, Elizabeth L. Hillman

UC Law Journal

District of Columbia v. Heller could prove a turning point not in the law governing the right to keep and bear arms, but governing the right to serve in the military. Heller's reasoning, notwithstanding the Court's efforts to constrain its analysis from reaching a right to serve, should lead to a reconsideration of military service as a broadly-held and long-recognized constitutional right. Because of the political meaning of military service and the changes that have altered the role and make-up of the military in the United States, the Second Amendment ought to be read, in the wake of Heller, as …

Heller And Nonlethal Weapons, Craig S. Lerner, Nelson Lund

UC Law Journal

Two important opinions in the past decade, both written by Justice Antonin Scalia, have sought to apply originalist jurisprudence to constitutional issues raised by technologies that were unknown at the time of the founding. In Kyllo v. United States, the Court held that using sense-enhancing technology to obtain information about the interior of a home, even without a physical intrusion, constitutes a Fourth Amendment search, at least if the technology is not "in general public use." This rule appropriately preserves the privacy that could only have been violated by a trespass in 1791. In District of Columbia v. Heller, the …

Male Rape And Human Rights, Lara Stemple

UC Law Journal

For the last few decades, the prevailing approach to sexual violence in international human rights instruments has focused virtually exclusively on the abuse of women and girls. In the meantime, sexual violence against males continues to flourish in prisons, men have been abused and sexually humiliated during situations of armed conflict, the sexual abuse of boys remains alarmingly common, and gay male victims of sexual assault are assumed to have "asked for it." This Article discusses the frequency of male rape and the various contexts in which in occurs. It notes, however, that numerous instruments in the human rights canon …

Full State Funding Of Education As A State Constitutional Imperative, Laurie Reynolds

UC Law Journal

After nearly four decades of school finance litigation, with numerous plaintiff victories based on state constitutional law doctrines of equality and adequacy, subsequent generations of lawsuits reveal that the earlier court decrees have not eliminated sustained inequality and inadequacy in public schools. This disappointing state of affairs, when coupled with the fact that a growing number of state courts are increasingly reluctant to take on the merits of school finance cases, suggests that the future trajectory of school finance and school finance litigation is not positive. In this Article, I suggest that both of these negative trends are at least …

Sovereign Immunity And Patent Infringement, Ten Years After Florida Prepaid: The State Of The Law And How It Can Be Fixed, Matthew Paik

UC Law Journal

Ten years ago, the United States Supreme Court decided Florida Prepaid Secondary Education Expense Board v. College Savings Bank, a case with far-reaching implications in both patent law and sovereign immunity. With its decision, the Supreme Court reestablished the immunity that states enjoyed against patent infringement suits. The effect was that while states could obtain patents and enforce them against any infringers, private party patent holders could not do the same when states infringe on their patents. Now, more than ever, states are reaping the benefits of the patent system without having to play by the same set of rules …

Originalism And The "Challenge Of Change": Abduced-Principle Originalism And Other Mechanisms By Which Originalism Sufficiently Accommodates Changed Social Conditions, Lee J. Strang

UC Law Journal

One of the most persistent criticisms of originalism-and also one of the most powerful-is that originalism is not a viable interpretative methodology because of the tremendous technological, social, cultural, religious, and moral change that has occurred since the Constitution's original meaning was created. The Constitution's original meaning arose in contexts so dramatically different from our own, the criticism goes, that a Constitution whose meaning was limited by those contexts would be unworkable in today's world.

This form of criticism of originalism - the challenge of changeis pervasive. In this Article, I argue that originalism has, within its analytical quiver, six …

The Good Faith Exception As Applied To Illegal Predicate Searches: A Free Pass To Institutional Ignorance, Andrew Z. Lipson

UC Law Journal

The Supreme Court recently clarified the scope of the good faith exception to the exclusionary rule in Herring v. United States. The Court's decision, however, did not address whether the good faith exception should apply to illegal predicate searches. Illegal predicate searches are searches where a police officer misapplies the law and conducts an illegal search that yields evidence later used to obtain a search warrant. There is currently a circuit split on the application of the good faith exception to situations where there has been an illegal predicate search. Some circuits have held that even though the searching officer …

Introduction: The Second Amendment After Heller, Hastings Law Journal

UC Law Journal

No abstract provided.

Why Didn't The Supreme Court Take My Advice In The Heller Case - Some Speculative Responses To An Egocentric Question, Sanford Levinson

UC Law Journal

There were a number of argumentative routes by which the Supreme Court could have reached the same basic result as was announced in the Heller case, i.e., the invalidation of the de facto prohibition of private handgun ownership in the District of Columbia. One of them was adoption of the approach suggested by Solicitor General Paul Clement (though he explicitly suggested remanding the case back to the Court of Appeals for the District of Columbia for consideration in light of a somewhat different standard of review, that could have easily led to the same outcome). The brief that he submitted …

The Folly Of Early Filing In Patent Law, Christopher A. Cotropia

UC Law Journal

This Article questions the conventional wisdom that the patent system should continue to encourage "early filing" of patent applications-filing at the beginning stages of technological development. The current thinking regarding early filing fails to account for the lack of technical and market information available about the invention at the early stages of development. A "file early, file often" mentality is instilled in inventors, exacerbating such systemic patent problems as too many patent applications, too many patents, underdevelopment of patented technology, increased assertion of patent rights, and fuzzy patent boundaries, to name a few. The Article suggests that in response patent …

Coding Complexity: Bringing Law To The Empirical Analysis Of The Supreme Court, Carolyn Shapiro

UC Law Journal

In recent years, the legal academy has experienced a surge of interest in quantitative empirical analysis. Unfortunately, this enthusiasm has not always been accompanied by careful analysis of what the tools and resources of quantitative analysis can tell us about law and legal doctrine. As this Article demonstrates, the findings of some studies therefore unwittingly reflect the limitations of those tools and resources rather than providing insight into the workings of courts.

Specifically, this Article provides a long-overdue critical analysis of the most influential source of data about the Supreme Court, the Original Supreme Court Database, created by political scientist …

The Constitutionalization Of Self-Defense In Tort And Criminal Law, Grammatically-Correct Originalism, And Other Second Amendment Musings, Alan Brownstein

UC Law Journal

The Supreme Court's opinion in Heller raises numerous questions. One of these is whether Heller requires the constitutionalization of self-defense decisions in tort and criminal law. Put simply, if the Second Amendment protects an individual's right "to keep and bear" the means to exercise self-defense, as Heller holds, can the Court avoid extending some level of constitutional protection to the act of self-defense itself? Answering this question in the affirmative leads to other issues. The justification of self-defense is grounded on an ad hoc evaluation of the reasonableness of the defendant's conduct. That analysis may be appropriate for tort or …

Second Amendment Limitations And Criminological Considerations, Don B. Kates, Clayton E. Cramer

UC Law Journal

Criminological studies which identify perpetrator characteristics are unanimous in finding that almost all murderers fall into three categories: (i) the mentally disturbed, and/or (2) adults with criminal records, and/or (3) juveniles with juvenile records. Many murder perpetrators exhibit two or all three characteristics. Thus laws such as the ones Heller invalidated that seek to disarm the general population have minimal value and deprive victims of the means of self-defense.

The Second Amendment does not guarantee: (i) weapons of indiscriminate destructiveness such as cannons, (2) any right of violent felons or of other felons whom legislatures reasonably identify as likely to …

Second Amendment Decision Rules, Calvin Massey

UC Law Journal

In District of Columbia v. Heller, the Supreme Court determined that the Second Amendment protects an individual right to bear arms for self-defense. That right is a constitutional operative rule: We know it exists but we have little idea of its boundaries. Constitutional decision rules, whether they be tiered scrutiny, multi-factor analytical tests, categorical rules, or something else, function to enable courts, lawyers, and citizens to understand the dimensions of any given right. Because the Court has announced a new constitutional operative rule without providing much guidance concerning the applicable constitutional decision rules, this Essay is an effort to identify …

The Procedural Annihilation Of Structural Rights, Steven G. Gey

UC Law Journal

For several years, the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called "structural rights." The term "structural rights" describes constitutional provisions that are designed to protect the basic nature of democratic government. These provisions constrain the power of the elected branches of government, preserve citizen autonomy, and otherwise ensure that political winners in the democratic process do not use their power …

Transparency, 2009, Eugene R. Fidell

UC Law Journal

No abstract provided.

A Case For A Constitutional Right To Counsel In Habeas Corpus, Emily Garcia Uhrig

UC Law Journal

This Article argues for recognition of a constitutional right to assistance of counsel in habeas corpus proceedings that involve challenges to the legality of a criminal judgment where habeas in effect functions as the first appeal of right. It is well-established that due process and equal protection principles guarantee the indigent defendant a right to counsel on the first appeal of right. But the Supreme Court has concluded that no right to counsel attaches in further, discretionary appeals, and in state habeas proceedings where the claims at issue were previously litigated on direct appeal. In Coleman v. Thompson, decided in …

Worship Test: Balancing The Religion Clauses In The Limited Public Forum, Joshua B. Marker

UC Law Journal

In Good News Club v. Milford, the Court left unanswered whether, in a limited public forum, a restriction solely on worship is constitutional. This issue implicates a number of smaller issues, including whether there is an intelligible distinction between worship and other manners of religious speech. Even if there is an intelligible distinction, is it the role of the courts to define it? And if so, what is the appropriate method of doing so?

This Note argues that a restriction solely on worship is constitutional in the limited public forum. Further, there is an intelligible distinction between worship and other …

Inclusion By Design: Accessible Housing And Mobility Impairment, Robin Paul Malloy

UC Law Journal

In the midst of pervasive national efforts at improving accessibility to public places for people with disabilities, there is no national design standard for making single-family residential housing accessible to the mobility impaired. As a consequence, people with mobility impairment often find that they are unable to safely and easily visit the homes of family, friends, neighbors, and colleagues because their housing is designed with exclusionary and unsafe features-features that would not be permitted if the property were a public place, a place of public accommodation, or publicly funded housing.

This Article questions the difference in inclusive design requirements as …

Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr., Dana Remus Irwin

UC Law Journal

Model Rule of Professional Conduct 4.2, in effect in substantially similar form in all U.S. jurisdictions, generally forbids a lawyer from contacting a person represented by another lawyer unless that lawyer consents or the contact is "authorized by law." Our thesis is that as conceptualized and applied, this Rule is overbroad and ambiguous in important respects. After illustrating and explaining these shortcomings, we propose reform to Rule 4.2 to better implement its intended purpose. Specifically, we propose modifications to the text of the Rule that: (i) clarify the meaning of the "authorized by law" exception, (2) articulate new exceptions to …

What Is Specific About "Specific Restitution"?, Colleen P. Murphy

UC Law Journal

An important functional difference among restitutionary remedies is between giving a plaintiff the monetary value of the defendant's unjust enrichment or giving the plaintiff an identifiable asset that constitutes the defendant's unjust enrichment. This difference commonly is labeled by scholars to be a difference between a money judgment and "specific restitution." This terminology obscures important concepts, such as that a plaintiff's asset-based remedy might be for a fund of money or that recovery of an asset might not constitute "specific" relief-that is, the plaintiff might not get the thing to which the plaintiff originally was entitled. In many of its …

Reconstructing Cumis: What The California Legislature Got Wrong About California Civil Code Section 2860 And How To Fix It, Rich Marotti

UC Law Journal

In 1984, California courts leapt to the forefront of protecting consumers of insurance with the decision in San Diego Navy Federal Credit Union v. Cumis Insurance Society, Inc. Several years later, the California General Assembly enacted California Civil Code section 2860. The statute was presumably established in response to the expansive Cumis decision. However, the bill containing the language that ultimately became section 2860 received little to no public comment, nor does it appear to have received much scrutiny from the assembly. It amounted to a backroom deal among special interest groups that was revealed only a few days before …

Losing Faith: The Supreme Court And The Abandonment Of The Adjudicatory Process, Erwin Chemerinsky

UC Law Journal

Increasingly the courthouse doors across the United States are being closed to litigants in both criminal and civil cases. This trend reflects an increasing loss of faith in, and abandonment of, the adjudicatory process. Painting with broad strokes, and looking at the criminal justice system, the civil justice system, and the War on Terror, it seems that we are no longer a society living up to the constitutional axioms upon which our country is based. By giving up these notions of process, we are giving up something very fundamental to our constitutional birthright. The late Justice William Douglas said we …

Can A Subsequent Change In Law Void A Marriage That Was Valid At Its Inception? Considering The Legal Effect Of Proposition 8 On California's Existing Same-Sex Marriages, Lois A. Weithorn

UC Law Journal

On May 15, 2008, the California Supreme Court held that California's prohibition of same-sex marriage violated the equal protection and due process clauses of the California Constitution. One month later, pursuant to that court's authority, county clerks throughout California began certifying marriages of same-sex couples. Opponents of same-sex marriage placed a voter initiative- ultimately known as Proposition 8-on the November 4, 2008 ballot. Proposition 8 passed with 52.3% of the vote, thereby placing in the California Constitution the language, "Only marriage between a man and a woman is valid or recognized in California." In response to its passage, California officials …

Passwords And Keys Under The Dmca: A Call For Clarification From The Courts Or Congress, Lindsey M. Shinn

UC Law Journal

While the DMCA was passed to protect copyrighted content in the digital age, the cases interpreting the statutory terms "circumvention" and "authorization" are inconsistent. The courts have staked out two poles on what does and does not constitute circumvention under the DMCA: aftermarket parts that run items like garage doors do not circumvent, but code that allows an unanticipated device to play a CD is a circumvention. This Note explores the surprising consequences of carrying the reasoning of each of these lines of cases to their logical conclusions. The most unsettled area naturally falls in the middle-in the cases of …

Heller, High Water (Mark)? Lower Courts And The New Right To Keep And Bear Arms, Brannon P. Denning, Glenn H. Reynolds

UC Law Journal

In the wake of District of Columbia v. Heller, lower courts have entertained a number of challenges to myriad federal, state, and local gun-control laws. Not surprisingly, given language in Heller seemingly intended to forestall some claims, courts have not, to date, invalidated federal or state gun-control laws that fall short of D.C.'s near-prohibition on private gun ownership. While the lower court cases to date confirm our earlier predictions that lower courts would not run wild with Heller, it is not clear that Heller was a purely symbolic victory either. Governments now find themselves legislating in the shadow of Heller; …