Law Commons^™

Palestine And Humanitarian Law: Israeli Practice In The West Bank And Gaza, Carol Bisharat

UC Law SF International Law Review

With the purpose of providing a context for the eighteen month long Palestinian uprising, this Article traces the significant events in the history of the Israeli-Palestinian conflict emphasising the intolerable conditions imposed by twenty-two years of military rule. In the framework of international law, this Article examines first the application of the Fourth Geneva Convention, and secondly Israel's institutionalized violation of the Convention's governing standards as they apply to Palestinians in the occupied territories. The Palestinian right to self determination will be analyzed as it relates to the application of the Fourth Geneva Convention. Finally, Israeli laws and practices will …

Traditional Vietnamese Law--The Le Code--And Modern United States Law: A Comparative Analysis, Lan Quoc Nguyen

UC Law SF International Law Review

In the fifteenth century the Vietnamese developed a comprehensive legal treatise, known as the Le Code, which included a number of advanced legal concepts. Many of those concepts, for example spousal immunity, the prohibition against ex post facto laws, and the rights of the accused to release on bail, a speedy public trial, and confrontation of witnesses, are similar to those found in modem United States law. This Note explores the amazing similarities between two legal systems that are foreign in time and culture from each other. By comparing sections of the Le Code with United States law, this Note …

Validity Of Post-Employment Non-Compete Covenants In Broadcast News Employment Contracts, Jon H. Sylvester

UC Law SF Communications and Entertainment Journal

Post-employment non-compete covenants are problematic on both economic policy and individual rights bases. Such convenants are prevalent in the broadcast news industry, where enforcement is inconsistent and unpredictable largely because of the "unique services" rationale. The author argues that the problem of enforceability should be addressed statutorily.

Aural Sex: Has Congress Gone Too Far By Going All The Way With Dial-A-Porn, Heidi Skuba Maretz

UC Law SF Communications and Entertainment Journal

Dial-a-Porn continues to be a multimillion dollar industry in this country. Amendments in 1988 to the federal statute governing Dial-a-Porn resulted in a complete prohibition of all obscene and indecent recorded phone messages. The Supreme Court is expected to rule on the constitutionality of this statute for the first time in July 1989 in Sable Communicatios v. FCC. This Note discusses the statute in its current and pre-amendment forms and analyzes Second and Ninth Circuit decisions attempting to balance the competing interests concerning Dial-a- Porn. The author argues that the current statute is unconstitutional and should be struck down in …

Vads, Vars, And Authorized Dealers - Do The Franchise Laws Apply To The Computer Industry, Kennedy A. Brooks

UC Law SF Communications and Entertainment Journal

VAD/VAR distribution programs may be "franchises" within the technical definitions in applicable federal and state laws. Computer products manufacturers should exercise care in the design of their dealer channels to avoid the impact of these laws. This Article reviews the basic features of these distribution channels, analyzes the components of the various definitions of a franchise, and discusses how these laws might affect the characteristics of a computer dealer channel.

Carrying Copyright Too Far: The Inadequacy Of The Current System Of Protection For Computer Programs, Virginia R. Lyons

UC Law SF Communications and Entertainment Journal

Currently available methods of legal protection are inappropriate for software. Because copyright law developed long before the advent of computer programs, it does not take into consideration the specialized needs of the new technology. This Note examines the way copyright law was manipulated to address early problems in software protection, and the problems which result when these rules are applied to recent, more complicated cases. The Note then proposes a new system of legal protection for computer programs.

The Future Of Software Copyright Protection: Arbitration V. Litigation, Alisa E. Anderson

UC Law SF Communications and Entertainment Journal

The legal profession and computer industry have expressed dissatisfaction with the existing copyright protection provided computer software and its traditional means of enforcement by litigation. These criticisms are exemplified in the protracted NEC Corp. v. Intel Corp. litigation. After examination of the current copyright laws and the recent NEC/Intel decision, the author analyzes the IBM/Fujitsu settlement, which created a new hybrid form of commercial arbitration. By relinquishing extensive control over their businesses to the arbitrators, IBM and Fujitsu established a sophisticated mechanism to resolve future conflicts and forestall future litigation. The author concludes that this hybrid method of arbitration is …

The Constitutional Administration Of The Beirut Agreement: Paradox Or Possibility, Alison E. Baur

UC Law SF Communications and Entertainment Journal

The Beirut Agreement is a multilateral treaty that allows for the dutyfree exchange of audiovisual materials, if they are certified by the exporting country to be "cultural, educational or scientific." The certification criteria used by the United States to define these terms was struck down as unconstitutional in the case of Bullfrog Films v. Wick. This Note analyzes the Bullfrog case and its subsequent appeal, as well as the issues surrounding the continued efforts of the United States Information Agency to draft satisfactory criteria. The Note concludes with the author offering suggestions for a constitutionally acceptable set of certification criteria.

Technological Poetry: The Interface Between Copyrights And Patents For Software, Willis E. Higgins

UC Law SF Communications and Entertainment Journal

For historical reasons, there is an overlap between patent coverage for software as a technology and copyright coverage for software as a literary work. Each of these forms of protection for software has a proper role and should be allowed to coexist. Through common law evolution in case law and patent grants by the U.S. Patent and Trademark Office, patents have become the way to protect new and nonobvious functional concepts of software. Therefore, courts may be less willing to expand the scope of protected expression of copyrights to protect the functional aspects of software.

Mandatory Television Access For Minor Party Presidential Candidates: Revamping Section 315 Of The Equal Opportunities Doctrine, M. Shannon Underwood

UC Law SF Communications and Entertainment Journal

The Equal Opportunities Doctrine requires that broadcasters providing exposure to candidates make comparable time available to all other candidates for the same elective office. Unfortunately, the Doctrine has been emasculated by exemptions that provide the Republican and Democratic candidates with free air time while denying time to minor party candidates, thus frustrating the Doctrine's goal of informing the public of a wide array of political thought. This Note argues that the exemptions from the Doctrine should be narrowed and also advocates a system of mandatory access for political candidates based upon their showing in the polls.

What Does The Fairness Doctrine Controversy Really Mean, Jerome A. Barron

UC Law SF Communications and Entertainment Journal

In 1987, the FCC repealed broadcasting's Fairness Doctrine. This longestablished Doctrine required broadcasters to adequately cover issues of public importance and to provide a balanced presentation of controversial viewpoints. Opponents of the Fairness Doctrine would make broadcasting fungible, in a first amendment sense, with the print media. But what distinguishes broadcasting from the print media is not the Fairness Doctrine, but licensing in the public interest. This Commentary contends that there is an inherent bedrock fairness principle rooted in the public interest standard of the Federal Communications Act of 1934. The public interest standard is an independent source for the …

Towards A Bill Of Rights For A Democratic South Africa, Albie Sachs

UC Law SF International Law Review

Instead of a bill of rights for post-apartheid South Africa being a means of protecting group privileges under the guise of protecting group rights, it should be an instrument for enlarging the freedom of the oppressed majority, recognizing the cultural diversity of the country, and guaranteeing equal individual rights for all, irrespective of race, color or creed.

Human Rights In Africa: A Cultural, Ideological, And Legal Examination, Ziyad Motala

UC Law SF International Law Review

This Article considers the dominant liberal interpretation of human rights and examines its relevance to African society in terms of its cultural and ideological origins. An argument is made that traditional African society had a conception of human rights which respected important human rights values. However, the rights in traditional African society were not conceptualized in individual terms. This constitutes a fundamental point of departure from the liberal interpretation. Furthermore, human rights practices should be understood, and criticisms against African societies made, in terms of traditional African conceptions. Finally, the African Charter of Human and People's Rights is evaluated in …

Tax Implications Of Debt-For-Equity Swaps, Stuart M. Berkson, Bruce A. Cohen

UC Law SF International Law Review

This Article examines the United States income tax implications of debt-for-equity swaps. It focuses on Revenue Ruling 87-124 and describes its application to debt conversions. The Article also considers alternatives available to United States taxpayers in dealing with the potentially adverse consequences of Revenue Ruling 87-124, including arguments which could be raised during the course of an audit or a legal challenge. The Article concludes with a possible manner in which the debt-for-equity swap can be restructured to avoid Revenue Ruling 87- 124.

Hague Evidence Convention In The Aftermath Of Societe Nationale Industrielle Aerospatiale, Pascal W. Di Fronzo

UC Law SF International Law Review

The successful negotiation of the Hague Evidence Convention in 1970 represented an historic achievement in furthering international cooperation in transnational discovery. The Evidence Convention established procedures for obtaining evidence located abroad that would be tolerable to the requested state and would produce evidence utilizable in the requesting state. In Socie't Nationale Industrielle AerospatiaIle the United States Supreme Court majority failed to recognize the great accomplishment the Evidence Convention represents toward international judicial cooperation. The Court held that the Evidence Convention is United States law, but that its application in American courts is optional. This Note addresses the inadequacies of the …

External Influences On Third World Debt, Neva Seidman Makgetla

UC Law SF International Law Review

At over one billion dollars in the late 1980s, Third World debt precipitated a variety of crises for the actors affected. On the one hand, it jeopardized the profitability of leading transnational banks. On the other, it involved a massive outflow of capital from the Third World, which endured a fall in both consumption and investment. The transnational banks and their home governments responded by demanding that the Third World impose austerity programs, which aimed to reduce consumption in order to enhance investment and maintain debt-service payments. To that end, Western creditors demanded the adoption of free-market policies. The logic …

The Legal Problems Of Indigenization In Nigeria: A Lesson For Developing Countries, Ifeanyi Achebe

UC Law SF International Law Review

In this Article, the author explores, without singling out Nigeria, the various consequences of inattention to uniform enforcement of the Nigerian Enterprises Promotions Decree promulgated in January 1977 (NEPD 1977) to facilitate and enhance economic development. The author notes that economic planners in developing countries have begun to recognize the importance and implications of the legal aspects of indigenization.

In the Nigerian situation, failure to enforce the indigenization decree and related laws encouraged religious discrimination, nepotism, and corruption in high places. It also encouraged fronting, the top enemy of economic progress. If Nigeria is to survive, President Ibrahim Babangida must, …

A Comparative Analysis Of Debt Equity Swap Programs In Five Major Debtor Countries, Derek Asiedu-Akrofi

UC Law SF International Law Review

Since the onset of the debt crisis, developing countries have resorted to several debt reduction and debt management techniques in order to sustain their debt servicing. One of the most popular of such techniques is debt-equity swaps. Its popularity is illustrated by the fact that several countries have either implemented formal debt-equity swap programs or are contemplating doing so. Despite the popularity of this technique, it is important to note that the features of each program are designed to suit the needs of each debtor country. Accordingly, the modalities for converting foreign debt to equity vary from country to country. …

The Political Offense Exception And The Extradition Process: The Enhancement Of The Role Of The U.S. Judiciary, Abraham Abramovsky

UC Law SF International Law Review

Using Northern Ireland as a model, this Article argues that some political dissidents have not received fair trials in countries requesting extradition and suggests another method for evaluating extradition requests. This Article first provides background about the conflict in Northern Ireland and the trial procedures for alleged terrorists. Then, the extradition procedure in the United States is examined emphasizing the political offense exception. The Article concludes that the courts are the most appropriate forum for inquiry into the criminal system of the country requesting extradition, especially when the political offense exception is invoked. The courts should affirmatively undertake the duty …

A Cry For Help: A Comparison Of Voluntary, Active Euthanasia Law, Lynn Tracy Nerland

UC Law SF International Law Review

Active euthanasia, commonly referred to as mercy killing, is an international phenomenon. Yet, the legal response to euthanasia cases varies considerably. The United States and other common- law jurisdictions have no statutes dealing with active euthanasia. They rely instead on the discretion of the prosecutor, judge, and jury to determine justice. This approach produces inconsistent outcomes. Some individuals involved in active euthanasia never come to trial, and others are convicted of murder. This Note explores the judicial and statutory responses to euthanasia in a variety of countries, including the United States, West Germany, Japan, and the Netherlands. Using this comparison, …

The Brazilian Debt-Equity Swap Program, Walter Douglas Stuber

UC Law SF International Law Review

With an external debt amounting to more than 110 billion dollars, Brazil is currently one of the most indebted countries. Since the eruption of the external debt crisis in 1982, Brazil has pursued a number of strategies to face this burden, including debt reschedulings and a moratorium on the payment of interests. This Article is focused on one of the strategies resorted to, the debt conversion program, officially enacted in Brazil in 1988. Upon reviewing the historical background of the foreign debt and its conversion, the Article discusses the different aspects of the debt-to-equity swap program, including eligible debt, conversions …

Intercompany Pricing Of Intangibles Under Section 482: A Comparison With Japanese Tax Policy, Christine Tomomatsu

UC Law SF International Law Review

Tax policy influences the ability of United States businesses to compete internationally. The 1986 Tax Reform Act amended section 482 of the Internal Revenue Code, imposing on United States corporations a new standard for pricing intercompany transfers of intangibles. This new standard deviates from the traditional arm's length standard. It is strict and unpredictable, creating taxpayer uncertainty and discouraging corporations from investing abroad. In contrast to the United States, Japan's tax policy attempts to alleviate uncertainty and double taxation. This Note compares Japanese and United States tax policies to demonstrate the detrimental impact the amendment to section 482 will have …

Constitutional Considerations Of The Children's Television Act Of 1988: Why The President's Veto Was Warranted, David S. Versfelt

UC Law SF Communications and Entertainment Journal

Late last year, President Reagan surprised many when he vetoed the Children's Television Act of 1988, which would have limited the time available for commercials broadcast during children's programming. His veto message referred to "freedom of expression," but did not elaborate on first amendment concerns raised by the legislation. The author evaluates these and other issues and concludes that President Reagan's veto was consistent with a sensitive approach to first amendment issues in the area of children's advertising.

Digital Sampling: The Copyright Considerations Of A New Technological Use Of Musical Performance, Jeffrey S. Newton

UC Law SF Communications and Entertainment Journal

The author explores the controversial topic of digital sampling, a process that allows one musician to use another musician's performance without knowledge or consent. He explores the acquisition and use of samples and argues that a musician's "sound" is a copyrightable work, satisfying both constitutional and statutory requirements. The author further examines the interplay between sample acquisition and the Copyright Act's "fixation" requirement and the question of whether digitized tone colors are uncopyrightable upon utilitarian grounds. The author concludes that a musician's "sound" is copyrightable as a derivative work, that the standard of "substantial similarity" can be used to prove …

Trade-Based Remedies For Copyright Infringement: Utilizing A Loss-Preventative Synthesis, Antionette M. Von Dem Hagen

UC Law SF Communications and Entertainment Journal

Foreign infringement of U.S. intellectual property rights continues to affect U.S. business revenue, particularly for copyright-dependent industries. Trade-based remedies-such as sections 301 and 337 of the Trade Act of 1974, recently amended by the Omnibus Trade and Competitiveness Act of 1988-may be used to combat this infringement successfully. Sections 301 and 337 have generally been used separately as distinct remedies for different problems. This Note suggests, however, that in view of U.S. industries' long-term goal of reducing revenue losses attributable to foreign intellectual property infringement, sections 301 and 337 are more effectively used in tandem, particularly against copyright infringement. This …

Punitive Damages In Libel Cases After Browning-Ferris, P. Cameron Devore, Marshall J. Nelson

UC Law SF Communications and Entertainment Journal

The award of punitive damages in libel cases has been a topic of constitutional debate ever since the United States Supreme Court imposed first amendment restrictions on state libel laws in 1964. More recently, the constitutionality of punitive damages has been challenged in non-libel cases under the eighth and fourteenth amendments. Last year, in Browning-Ferris Industries of Vermont v. Kelco Disposal, Inc., the Supreme Court held that punitive damages are not prohibited by the eighth amendment but expressly reserved the fourteenth amendment issue for later consideration. This Article examines Browning- Ferris in light of the Court's prior treatment of punitive …

The Department Of Communications: A Plan And Policy For The Abolition Of The Federal Communications Commission, Michael F. Starr, David J. Atkin

UC Law SF Communications and Entertainment Journal

Few areas of federal oversight have been as inconsistently addressed as that involving the regulation of broadcast and wire communication. Action in this realm has been all too often governed by political, rather than social or economic, imperatives. Many, no doubt, accept this situation as a necessary element of democratic decisionmaking. The deregulatory fervor of the 1980s could thus be seen as part of a long-term process of political redefinition. The consequences of regulatory neglect in this area will affect more than the traditional broadcast constituency of the Federal Communications Commission (FCC). For, as traditional distinctions between communications technologies continue …

Ode To A Crim Teacher, Laura Weinstock

UC Law SF Journal on Gender and Justice

No abstract provided.

Beyond The Battered Woman Syndrome: An Argument For The Development Of New Standards And The Incorporation Of A Feminine Approach To Ethics, Deborah Kochan

UC Law SF Journal on Gender and Justice

No abstract provided.

The Broken Promise Of Reclamation Reform, Hamilton Candee

UC Law Journal

The Federal Reclamation Program was created by Congress in 1902 to foster economic development and settlement of the west by encouraging small family farms. This Article argues that due to abuses by large landholders and ineffective enforcement by the Bureau of Reclamation, this goal was not achieved. To eliminate these abuses and to control the amount of federal water subsidy, Congress passed the Reclamation Reform Act (RRA) in 1982. The RRA made significant changes to the reclamation program and authorized the Bureau to adopt regulations to implement these changes. This Article argues that, despite these efforts, the goal of reform …