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Full-Text Articles in Law
Note – Fashioning A New Look In Intellectual Property: Sui Generis Protection For The Innovative Designer, Linna T. Loangkote
Note – Fashioning A New Look In Intellectual Property: Sui Generis Protection For The Innovative Designer, Linna T. Loangkote
UC Law Journal
Fashion design is weaving its way through the fabric of American society by transforming how people think about fashion apparel. The $350 billion fashion industry not only puts the clothes on our backs, but gives individuals an outlet for individual expression as well. More and more, the fashion design process is recognized as a creative process where vision, raw materials, and skill meet to produce fashion apparel that should be worthy of sui generis protection.Current intellectual property regimes fail to adequately equip designers with legal remedies to guard against design piracy, and this affects both innovation and competition. Moreover, even …
Crime Mapping And The Fourth Amendment: Redrawing “High-Crime Areas”, Andrew Guthrie Ferguson
Crime Mapping And The Fourth Amendment: Redrawing “High-Crime Areas”, Andrew Guthrie Ferguson
UC Law Journal
Crime-mapping technology has the potential to reshape Fourth Amendment protections in designated “high-crime areas.” In Illinois v. Wardlow the Supreme Court held that presence in a high-crime area is one of only two factors necessary for creating reasonable suspicion to stop an individual. Since Wardlow, thousands of federal and state cases have used the term “high-crime area,” yet only a handful of courts have considered how to define it. New crime-mapping technologies can now address that definitional problem. Crime-mapping technologies can collect and analyze crime statistics so that police districts can produce almost perfect information about the level, rate, and …
Institutionalization, Investment Adviser Regulation, And The Hedge Fund Problem, Anita K. Krug
Institutionalization, Investment Adviser Regulation, And The Hedge Fund Problem, Anita K. Krug
UC Law Journal
This Article contends that more effective regulation of investment advisers could be achieved by recognizing that the growth of hedge funds, private equity funds, and other private funds in recent decades is a manifestation of institutionalization in the investment advisory context. That is, investment advisers today commonly advise these “institutions,” which have supplanted other, smaller investors as advisory clients. However, the federal securities statute governing investment advisers, the Investment Advisers Act of 1940, does not address the role of private funds as institutions that now intermediate those smaller investors’ relationships to investment advisers. Consistent with that failure, investment adviser regulation …
Patent-Eligible Inventions After Bilski: History And Theory, Joshua D. Sarnoff
Patent-Eligible Inventions After Bilski: History And Theory, Joshua D. Sarnoff
UC Law Journal
The U.S. Supreme Court has continued to require that patentable subject-matter eligibility determinations be made by reference to three historic, categorical exclusions (scientific principles, natural phenomena, and abstract ideas), which must be treated as if already known even when newly discovered by the applicant. Various thoughtful scholars have alternatively urged that these exclusions should be viewed restrictively or that such eligibility decisions should be avoided. But these scholars underappreciate the systemic and social benefits of categorical exclusions, and particularly of treating these categories as if they were already known prior art. In any event, the Federal Circuit, the U.S. Patent …
The Psychology Of Procedural Justice In The Federal Courts, Rebecca Hollander-Blumoff
The Psychology Of Procedural Justice In The Federal Courts, Rebecca Hollander-Blumoff
UC Law Journal
This interdisciplinary Article examines our federal court system from the perspective of the psychology of procedural justice—that is, subjective perceptions about the fairness of process. The Article considers some of the central features of civil litigation from the standpoint of the psychology of procedural justice, highlighting some of the aspects of the system that are likely to increase perceptions of fair process, and exploring, conversely, rules and practices that may decrease those perceptions. The Article focuses on procedural justice in two contexts: basic rules and practices of civil procedure and more complex federal court doctrines that involve the allocation of …
Is There A Constitutional Right To Select The Genes Of One’S Offspring?, Andrew B. Coan
Is There A Constitutional Right To Select The Genes Of One’S Offspring?, Andrew B. Coan
UC Law Journal
The Supreme Court has long recognized a due process right to make deeply personal decisions such as whether to bear or beget a child. Might this right extend to selecting the genes of one’s offspring? Perhaps more important, should courts interpret it to do so? Thus far, discussion of these questions has focused almost exclusively on the normative goals that a constitutional commitment to procreative liberty should be taken to embrace. That is undoubtedly an important issue, but it cannot tell us whether courts are the institution best suited to carry any particular goal into effect. This is a basic …
Forced Federalism: States As Laboratories Of Immigration Reform, Keith Cunningham-Parmeter
Forced Federalism: States As Laboratories Of Immigration Reform, Keith Cunningham-Parmeter
UC Law Journal
Ever since Justice Louis Brandeis characterized states as laboratories of democracy, judges and scholars have championed the ability of states to offer a diverse array of solutions to complex national problems. Today, proponents of enhanced immigration restrictions apply the same rationale to state immigration laws. This Article challenges the assertion that states can serve as valuable laboratories of immigration reform.States that enact their own immigration laws do not internalize costs or yield replicable results—two conditions needed for viable experimentation. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, …
Network Accountability For The Domestic Intelligence Apparatus, Danielle Keats Citron, Frank Pasquale
Network Accountability For The Domestic Intelligence Apparatus, Danielle Keats Citron, Frank Pasquale
UC Law Journal
A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.While many scholars have assumed that this network represents a trade-off between security and civil liberties, our study …
Severability Of Statutes, Tom Campbell
Severability Of Statutes, Tom Campbell
UC Law Journal
Courts legislate when they engage in “severability analysis,” allowing part of a law to continue in force after having struck down other parts as unconstitutional. This is flawed for the same reason that the legislative veto and the executive line-item veto are flawed. All involve creating a legislative outcome without the joint approval of both houses and the executive. The practice derives from an analogy to contract enforcement, where a court will try to preserve part of a contract when the rest is unenforceable. However, the analogy is imperfect because Congress or the state legislature remains in a position to …
Race Audits, R. A. Lenhardt
Race Audits, R. A. Lenhardt
UC Law Journal
The persistence of the problems that attend the American color line makes clear the need for greater experimentation and innovation in the area of race. For years now, we have looked primarily to courts for solutions. But current jurisprudence offers very little that is useful in dealing with the modern realities of durable racial inequality and segregation. As cases such as Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano make clear, it limits dramatically the tools available to address racial inequality, regarding as “bad cities” localities that try affirmatively to grapple with matters …
Jury 2.0, Caren Myers Morrison
Jury 2.0, Caren Myers Morrison
UC Law Journal
When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or running the defendant’s name through Google during trial. But in the past few years, such cases have increasingly been making headlines. The impact of the Internet on the functioning of the jury has generated a lot of press, but has not yet attracted scholarly attention. This Article is the first to focus …
The New Common Law: Courts, Culture, And The Localization Of The Model Penal Code, Anders Walker
The New Common Law: Courts, Culture, And The Localization Of The Model Penal Code, Anders Walker
UC Law Journal
Few tropes in American legal teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law—what this Article terms “new common law”—transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this Article proposes a radical …
Apportioning Liability Behind A Veil Of Uncertainty, J. Shahar Dillbary
Apportioning Liability Behind A Veil Of Uncertainty, J. Shahar Dillbary
UC Law Journal
This Article challenges the reasoning that led most states to abandon the “no contribution” rule. Under the rule, if a victim obtains a judgment against two tortfeasors but chooses (even arbitrarily or out of spite) to recover only from one, the “chosen one” must pay the entire judgment while the other is exempted. This is the case even if the paying tortfeasor is only 1% at fault while the non-paying tortfeasor is 99% at fault. The rule has been lamented by tort-reform crusaders as immoral and unfair. One tortfeasor, the argument goes, should not bear the entire burden while the …
Note – Someone Is Watching: The Need For Enhanced Data Protection, Nic Roethlisberger
Note – Someone Is Watching: The Need For Enhanced Data Protection, Nic Roethlisberger
UC Law Journal
The computer revolution has created a world where communication is cheap and instantaneous, and where vast amounts of information and consumer goods are just a click away. It also has created a world where the electronic gadgets we use every day create a trail of information that is being collected, examined, sold, and—far too often—stolen. Individuals have little to no control over the use and sale of this personal, private information, and the law has failed to keep pace. Some privacy advocates have suggested that traditional privacy torts should be used by the courts to stop the worst of these …
Note – Bridging The Gap: An Application Of Social Frameworks Evidence To Shaken Baby Syndrome, Lauren Quint
Note – Bridging The Gap: An Application Of Social Frameworks Evidence To Shaken Baby Syndrome, Lauren Quint
UC Law Journal
Ever since the syndrome was first recognized in the 1960s, a diagnosis of shaken baby syndrome (“SBS”) was believed to be pathognomonic of abuse. New data calls into question the accuracy of the diagnosis and its association with nonaccidental death. This data points to alternative causes of brain injuries in infants and small children and casts doubt on the validity of evidence frequently used at trial. This Note explores problems associated with expert testimony in the context of SBS. It argues that despite the ability to accurately present general causation evidence at trial, introduction of specific causation testimony is often …
Problem-Solving Courts And The Defense Function: The Wisconsin Experience, Ben Kempinent
Problem-Solving Courts And The Defense Function: The Wisconsin Experience, Ben Kempinent
UC Law Journal
Problem-solving courts have emerged as one of the fastest growing innovations in the criminal justice system. Their growth has not been without controversy, given their dramatic departure from a traditional adversary model in favor of a collaborative approach in dealing with offenders with serious alcohol or substance abuse, or mental health issues. The most outspoken criticism of this approach has come from the defense bar. This Essay suggests much of the criticism is misplaced, and, that if care is exercised in separating the roles that defense counsel plays in communities with problem-solving courts the promise of this approach for appropriate …
Note – Judge Nullification: A Perception Of Unpublished Opinions, Rafi Moghadam
Note – Judge Nullification: A Perception Of Unpublished Opinions, Rafi Moghadam
UC Law Journal
Back in 1974, the California Supreme Court took the ground-breaking step of creating an appellate rule that barred citation to unpublished opinions. The “no-citation rule” was designed to facilitate legal research by limiting the universe of citable cases. Over time, however, the rule has proven to be a mechanism for questionable discrimination against unpublished decisions. Unpublished appellate opinions are restricted supposedly based on characteristics shared by them—chiefly, unoriginal content—when in fact these cases often exhibit vibrant legal discourse. This Note reviews the no-citation rule from the ground up. The analysis begins with a comprehensive background, proceeds to test the legal …
The Incautious Media, Free Speech, And The Unfair Trial: Why Prosecutors Need More Realistic Guidance In Dealing With The Press, Andrew E. Taslitz
The Incautious Media, Free Speech, And The Unfair Trial: Why Prosecutors Need More Realistic Guidance In Dealing With The Press, Andrew E. Taslitz
UC Law Journal
The ABA has proposed a new Standard for the Prosecution Function, Standard 3-1.7, which addresses how prosecutors should communicate with the media. The core portion of that proposal prohibits a prosecutor from making a statement raising a substantial risk of materially prejudicing a criminal proceeding or of unnecessarily heightening public condemnation of the accused. But this proposal is unrealistic. Recent findings in cognitive science suggest that media information overload and its fast pace result in media coverage of high-profile trials that heightens audience’s negative emotions while compromising their critical faculties. Audience members thus are enraged at accused offenders and ill-equipped …
Developing Standards Of Conduct For Prosecutors And Criminal Defense Lawyers, Bruce A. Green
Developing Standards Of Conduct For Prosecutors And Criminal Defense Lawyers, Bruce A. Green
UC Law Journal
This issue and a companion issue of the Hastings Constitutional Law Quarterly together collect sixteen papers on the professional conduct of prosecutors and criminal defense lawyers. Typically, normative scholarship on lawyers’ professional conduct focuses on what the ethics rules and other laws require, or should require, of lawyers. These pieces are different, because their principal focus is not on whether lawyers’ conduct is minimally ethical or lawful, but on how lawyers should practice within the bounds of the ethics rules and other law. That is because the authors were asked to take unenforceable professional standards, the ABA Criminal Justice Standards …
The Role Of The Prosecution And Defense Function Standards: Stagnant Or Progressive?, Ellen S. Podgor
The Role Of The Prosecution And Defense Function Standards: Stagnant Or Progressive?, Ellen S. Podgor
UC Law Journal
This Essay examines the role of the ABA Criminal Justice Standards: The Prosecution and Defense Function Standards, looking at language when initially drafted to language being considered in the proposed fourth edition. It focuses on the preliminary sections of the Standards that outline the intended role of the Standards and considers how courts have used these Standards in court decisions. It also notes how the Standards serve a hortatory role, providing internal guidance to prosecutors and defense counsel. An overriding question is whether these Standards serve a legitimate function in the criminal justice process? Placing the question of the role …
The Aba’S Project To Revise The Criminal Justice Standards For The Prosecution And Defense Functions, Rory K. Little
The Aba’S Project To Revise The Criminal Justice Standards For The Prosecution And Defense Functions, Rory K. Little
UC Law Journal
In late 2005, I was asked by the ABA Criminal Justice Standards Committee whether I would serve as ‘Reporter’ to a Task Force that was being formed to consider revisions to the Criminal Justice Standards for Prosecution and Defense Functions. The call did not come out of the blue; I had previously worked with the ABA in various capacities. In the mid-1990s, I had served as a member of the ABA’s Standing Committee on Professional Responsibility. In 1999, I published an article bemoaning the lack of specific guidance in the ABA Criminal Justice Standards for prosecutors acting in an investigative …
The Physical Evidence Dilemma: Does Aba Standard 4-4.6 Offer Appropriate Guidance?, Rodney J. Upholf
The Physical Evidence Dilemma: Does Aba Standard 4-4.6 Offer Appropriate Guidance?, Rodney J. Upholf
UC Law Journal
Since 1966, when criminal defense lawyer Richard Ryder was disciplined for retaining physical evidence that connected his client to a bank robbery, lawyers and courts have struggled with the ethical dilemma of how defense lawyers should deal with physical evidence that potentially incriminates one of their clients. When a lawyer takes possession of an evidentiary item, must she always turn it over to the authorities, as required by most courts that have addressed this dilemma? Or, can defense counsel return the evidence to the source from whom counsel received it as recommended by Standard 4-4.6 of the ABA Criminal Justice …
Quieting Cognitive Bias With Standards For Witness Communications, Melanie D. Wilson
Quieting Cognitive Bias With Standards For Witness Communications, Melanie D. Wilson
UC Law Journal
Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated roundtable discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section’s undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored Standards may lessen the detrimental …
Prosecutorial Decisionmaking And Discretion In The Charging Function, Bennett L. Gershman
Prosecutorial Decisionmaking And Discretion In The Charging Function, Bennett L. Gershman
UC Law Journal
A prosecutor’s charging decision is the heart of the prosecution function. The charging decision involves an extraordinary exercise of discretionary power that is unreviewable. As a result, the decision is difficult to guide except in the broadest terms. The proposed revisions to the ABA’s Criminal Justice Standards for the Prosecution Function attempt to address several key issues that inform the charging decision, by broadening the language of several provisions of the current Standards as well as adding several new provisions. To be sure, the proposed Standards significantly change the current Standards with respect to the proper factors and considerations affecting …
Prosecutorial Disclosure Obligations, Ellen Yaroshevsky
Prosecutorial Disclosure Obligations, Ellen Yaroshevsky
UC Law Journal
Prosecutorial disclosure of information to the defense has long been recognized as essential to a fair criminal justice system and yet, the required disclosure is ill defined and the subject of ongoing contention. Prosecutor’s obligations are informed by various sources including state and federal constitutional provisions, statutes, court rules and state ethics rules. The ABA Criminal Justice Standards, another source defining that obligation, can and have served as guidance for judges, prosecutors and defense lawyers, notably in areas of ambiguity. Those Standards were recently revised to provide greater clarity as to the scope of what information should be provided to …
Investigative Deceit, Kevin C. Mcmunigal
Investigative Deceit, Kevin C. Mcmunigal
UC Law Journal
Is it ever ethical for a lawyer to ask or assist another person to lie on behalf of a client? Despite ethical rules categorically banning both personal and vicarious deceit, prosecutors routinely supervise police officers and informants who use deceit in investigating drug and sex offenses, organized crime, and terrorism. May defense lawyers make use of investigative deceit in criminal investigations? In this Essay, the Author examines this issue, the ethical rules bearing on it, and the recent trend in a number of jurisdictions allowing the use of investigative deceit by the defense. Drawing on his participation in a series …
Is The Public Utility Holding Company Act A Model For Breaking Up The Banks That Are Too-Big-To-Fail?, Roberta S. Karmel
Is The Public Utility Holding Company Act A Model For Breaking Up The Banks That Are Too-Big-To-Fail?, Roberta S. Karmel
UC Law Journal
During the financial crisis of 2007–08 and the debates on regulatory reform that followed, there was general agreement that the “too-big-to-fail” principle creates unacceptable moral hazard. Policy makers divided, however, on the solutions to this problem. Some argued that the banking behemoths in the United States should be broken up. Others argued that dismantling the big banks would be bad policy because these banks would not be able to compete with universal banks in the global capital markets, and in any event, breaking up the banks would be impossible as a practical matter. Therefore, better regulation was the right solution. …
Note – Privacy And Security During Life, Access After Death: Are They Mutually Exclusive?, Molly Wilkens
Note – Privacy And Security During Life, Access After Death: Are They Mutually Exclusive?, Molly Wilkens
UC Law Journal
The Internet has transformed the way we live our lives. What we have not yet fully realized is how it will impact what happens after we die. Specifically, the migration of financial services online, and the corresponding elimination of paper records, will hamper access to a decedent’s financial assets and may eliminate knowledge of their existence entirely. This Note explores how federal financial and internet privacy laws affect the disclosure of a person’s private financial information and offers solutions for reconciling lifetime privacy interests and the desire for access after death.
The Myth Of “Conquered Provinces”: Probing The Extent Of The Vra’S Encroachment On State And Local Autonomy, Michael Halberstam
The Myth Of “Conquered Provinces”: Probing The Extent Of The Vra’S Encroachment On State And Local Autonomy, Michael Halberstam
UC Law Journal
This Article advances the controversial thesis that the preclearance provision under section 5 of the Voting Rights Act (VRA) is not as intrusive as is generally assumed. It shows that the architecture of the preclearance regime is consistent with “new institutionalist” models of administration that favor devolution and learning through monitoring and disclosure. The Article thereby counters the unchallenged view— articulated in Supreme Court jurisprudence, the legislative record, and scholarship— that the U.S. Department of Justice’s authority to object to state and local election law changes under the preclearance regime has amounted to a heavy-handed intervention into state and local …
Righting The Historical Record: A Case For Appellate Jurisdiction Over Appeals Of Sentences For Reasonableness Under 28 U.S.C. § 1291, Briana Lynn Rosenbaum
Righting The Historical Record: A Case For Appellate Jurisdiction Over Appeals Of Sentences For Reasonableness Under 28 U.S.C. § 1291, Briana Lynn Rosenbaum
UC Law Journal
This Article is the first to analyze critically the jurisdictional basis for the Supreme Court’s mandate in United States v. Booker that all courts of appeals review the length of criminal sentences for “reasonableness.” The availability of appellate review has expanded greatly since the Booker opinion, and, indeed, recent research shows that the number of sentence appeals has risen. Unfortunately, the Court did not explain the jurisdictional basis for its expanded “reasonableness review.” The omission is not trivial. For decades, federal courts have held that courts of appeals do not have jurisdiction to review the length of criminal sentences. This …