Law Commons^™

"If Property Rights Were Treated Like Human Rights, They Could Never Get Away With This": Blacklisting And Due Process In U.S. Economic Sanctions Programs, Peter L. Fitzgerald

UC Law Journal

Economic sanctions have proliferated in the last half of the twentieth century, and become the "first choice" of policymakers seeking tools to address many complex international issues. A key feature of these various sanctions programs is the use of a blacklist, to bring third party agents, controlled entities, and corporate cloaks operating elsewhere within the ambit of the sanctions aimed at a particular country or destination. These blacklists have now grown to include several thousand individuals and entities. However, despite the growing importance of economic sanctions, and their accompanying blacklists, these programs are still managed by a relatively small office …

California's Sexually Violent Predator Act: The Role Of Psychiatrists, Courts, And Medical Determinations In Confining Sex Offenders, Carolyn B. Ramsey

UC Law Constitutional Quarterly

This article explores tensions between law and psychiatry after the California Supreme Court's affirmation of the Sexually Violent Predator Act ("SVPA")-a statute providing for the involuntary civil commitment of sex offenders at the end of their prison terms. The United States Supreme Court upheld a similar Kansas law in 1997. Following a brief discussion of the SVPA's constitutionality, the article considers three issues in greater detail: (1) the sex offender's right to treatment during civil confinement, (2) potential problems with finding a right to refuse treatment, and (3) the need to reconcile the standard for civil confinement under the SVPA …

Getting A Grip On Payne And Restricting The Influence Of Victim Impact Statements In Capital Sentencing: The Timothy Mcveigh Case And Various State Approaches Compared, Niru Shanker

UC Law Constitutional Quarterly

In the 1980's the Supreme Court barred the use of victim impact evidence at capital sentencing hearings as violative of the Cruel and Unusual Punishment clause. The Court reversed itself in Payne v. Tennessee, holding that the Eighth amendment erects no per se bar to victim impact evidence. Such evidence can be properly introduced if it is does not so inflame and prejudice the jury as to render the trial fundamentally unfair. Unfortunately, the Court did not provide any guidance to the lower federal and state courts to use in making that determination. There exists a risk, therefore, that many …

And Cloning Makes Three: A Constitutional Comparison Between Cloning And Other Assisted Reproductive Technologies, Stephanie J. Hong

UC Law Constitutional Quarterly

In recent years, society and medical technology have combined to yield numerous technologies with which a child may be born beyond traditional reproductive means. These procreative methods necessarily implicate various rights under the Constitution. The recent cloning of "Doily" the sheep and its potential implications for the cloning of human beings has thrust these issues into the forefront of society's collective mind. Despite constitutional concerns, these reproductive technologies remain legally permissible. The introduction of cloning, however, has been met with resistance far greater than that of the previous techniques.

This Note compares the similarities and differences, constitutionally speaking, between cloning …

Russia's 1993 Constitution: Rule Of Law For Russia Or Merely A Return To Autocracy, Christina M. Mcpherson

UC Law Constitutional Quarterly

On March 26,2000, Vladimir Putin was elected president in Russia. He had been Russia's interim president since December 31,1999, when Boris Yeltsin stepped down in a surprising act. Putin was Yeltsin's final prime minister, appointed less than six months prior to becoming acting president.

Putin, as the next president of Russia, will be guided by Russia's 1993 constitution and by Yeltsin's example. This Note examines the process of adoption of the 1993 constitution and the way in which it has been implemented and followed over the last seven years. The Note suggests that the constitution was adopted and has been …

Neutrality Of The Equal Protection Clause, K. G. Jan Pillai

UC Law Constitutional Quarterly

Espousing colorblindness as the defining feature of the Equal Protection Clause, a bare majority of the Justices of the United States Supreme Court has outlawed almost all race and gender-conscious government programs such as affirmative action, legislative redistricting and school desegregation. The doctrinal foundation of colorblindness is government neutrality. Colorblindness also envisions vigorous enforcement of anti-discrimination laws as the substitute for race-conscious measures to achieve racial equality. However, equal protection neutrality remains amorphous, undefined and structureless, and it often provides a safe harbor for race disadvantaging laws that do not measure up to the Court's standard of invidious discrimination. Moreover, …

The Constitutionality Of State And Local "Sanctions" Against Foreign Countries: Affairs State, States' Affairs, Or A Sorry State Of Affairs?, Brannon P. Denning, Jack H. Mccall Jr.

UC Law Constitutional Quarterly

Since the mid-1990s, many state and local governments have enacted a host of laws barring local governments' procurement of goods and services from persons doing business with certain pariah governments, including Burma (Myanmar), the People's Republic of China, Cuba, Nigeria and even Switzerland. Though ostensibly patterned after earlier laws, most notably longstanding "Buy American" laws and anti-apartheid laws of the 1980s, the latest wave of subnational sanctions statutes and ordinances is much broader in scope and application, raising troubling questions as to the constitutionality of such laws. An example is a Massachusetts statute forbidding the award of state contracts to …

The Rights To A Fair Trial And To Examine Witnesses Under The Spanish Constitution And The European Convention On Human Rights, Dennis P. Riordan

UC Law Constitutional Quarterly

In the wake of the death of dictator Francisco Franco in 1975, Spain enacted a new Constitution containing extensive procedural rights for criminal defendants, thereby in theory moving its justice system closer to the adverserial model of criminal trials long established in common law countries. In the years immediately following the passage of the 1978 Constitution, however, criminal proceedings continued to be inquisitorial in nature, especially in cases involving politically-charged allegations of domestic terrorism.

In this article, the author tracks one such case that had a dramatic impact on the Spanish legal system. Following their conviction for participating in a …

Section Three Of The Defense Of Marriage Act: Is Marriage Reserved To The States, Kristian D. Whitten

UC Law Constitutional Quarterly

It seems clear that the Framers of the Constitution of the United States believed that laws defining and regulating marriage were among the "numerous and indefinite" powers reserved to the states. Early U.S. Supreme Court decisions echoed that sentiment, and as recently as United States v. Lopez, the Court has cited regulation of domestic relations as a quintessentially state power. In 1996 Congress and the President reacted to the possibility that Hawaii might license same-sex marriages by enacting the Defense of Marriage Act, Section 3 which defines the words "marriage" and "spouse" for all federal laws, regulations and programs. This …

Scared To Death: The Separate Right To Counsel At Capital Sentencing, John E. Spomer Iii

UC Law Constitutional Quarterly

To date, a separate right to counsel at the penalty phase of a capital trial is not recognized as fundamental under the Sixth Amendment right to counsel provision. This Note addresses a capital defendant's constitutional right to have a separate attorney represent him during the sentencing stage. The Supreme Court, in several significant holdings, has stepped towards recognizing this right. The Court has held that the right to counsel applies to capital trials and to all critical stages therein. It also has held that the right to effective assistance of counsel applies at the sentencing phase of these trials and …

Supreme Court Voting Behavior: 1997 Term, Richard G. Wilkins, Scott L. Worthington, David M. Buchanan, R. Chad Hales

UC Law Constitutional Quarterly

This Article is the thirteenth consecutive annual study tabulating and analyzing the voting behavior of the United States Supreme Court. This Article examines the Court's voting behavior during the 1997 Term. The study attempts to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same as compared with past Terms.

Whether a vote is considered "conservative" or "liberal" depends upon the issues being decided. Generally, votes favoring the assertion of governmental power are "conservative," while votes favoring claims of individual liberty are considered "liberal." The issues are categorized into ten …

The Outer Limits Of Human Genetic Engineering: A Constitutional Examination Of Parents' Procreative Liberty To Genetically Enchance Their Offspring, Thomas Stuart Patterson

UC Law Constitutional Quarterly

The biotechnological field of genetic engineering is advancing so rapidly that some scientists predict that within the next decade, technology will be available that will enable people to genetically engineer their offspring. This ability could be used for purposes as diverse as curing a genetic disease or selecting certain "favorable" characteristics for one's progeny.

While there seem to be some potential benefits to such technology, there are specific dangers as well. Throughout the short history of genetic engineering, scientists have found that there are sometimes unanticipated negative effects that arise with genetic manipulation. Because of this fact, some scientists are …

Constitutional Comparisons And Converging Histories: Historical Developments In Equal Educational Opportunity Under The Fourteenth Amendment Of The United States Constitution And The New South African Constitution, Alfreda A. Sellers Diamond

UC Law Constitutional Quarterly

The black populations in both the United States and South Africa continue to suffer under the legacy of past discrimination and unequal educational opportunity. In both countries, the constitutional revisions eliminating state-sanctioned racial discrimination failed to alleviate the disadvantages experienced by blacks in terms of socioeconomic status, educational opportunity and political power.

America's post-emancipation history, including the Plessy v. Ferguson and Brown v. Board of Education Supreme Court jurisprudence, shows that the removal of de jure racial discrimination and constitutionally countenanced unequal treatment is not enough to repair the damage and lingering effects caused by former discrimination. Rather, more affirmative …

Separation Of Powers: The Appointment Of Bill Lann Lee As Acting Assistant Attorney General For Civil Rights, David L. Jordan

UC Law Constitutional Quarterly

This note asserts that President Clinton's naming of Bill Lann Lee as Acting Attorney General for Civil Rights, after the Senate's refusal to consent to his appointment, was a violation of the doctrine of separation of powers under Article II, Section 2, Clause 2 of the Constitution. The President was possessed of neither the Constitutional nor statutory authority to make Lee an "Acting" appointment. Without such authority, the President's actions contravene the principles of separation of power set forth in the Supreme Court's seminal holding of Youngstown Sheet & Tube Co. This conclusion is consistent with the intent of the …

Searching For The Structural Vision Of City Of Boerne V. Flores: Vertical And Horizontal Tensions In The New Constitutional Architecture, Thomas W. Beimers

UC Law Constitutional Quarterly

During the Rehnquist Court, America has witnessed accelerating federal judicial activism on behalf of States' rights, and a judicial branch that increasingly views itself as final arbiter of the proper allocation of power between the federal and State governments. Apologists for this trend identify it closely with perceived structural checks embedded in the Constitution, which are designed to ensure greater participatory access in self-governance. Despite this laudable goal, federalism-based precedents appear to conflict with civil rights legislation, such as the Americans With Disabilities Act and the Age Discrimination In Employment Act.

This article attempts to reconcile this apparent conflict by …

The Missing Pieces Of The Debate Over Federal Property Rights Legislation, Max Kidalov, Richard H. Seamon

UC Law Constitutional Quarterly

This Article analyzes the constitutionality of bills in Congress that would alter the two "ripeness" rules that the United States Supreme Court has developed for certain federal court lawsuits based on the Just Compensation Clause of the U.S. Constitution. The Court's ripeness rules apply when a property owner sues a local land-use agency in federal court claiming that the agency has "taken" property by severely restricting the property's use. One of the Court's rules requires the owner to get a final decision from the local agency regarding permissible uses of the property. The other rule requires the owner to exhaust …

Global Responsibility And The United States: The Constitutionality Of The International Criminal Court, Shannon K. Supple

UC Law Constitutional Quarterly

In 1998, the United Nations finalized an International Criminal Court statute. The purpose of this statute was to create an international tribunal, through which the international community could investigate and, if required, prosecute crimes of genocide, war crimes, and crimes against humanity. An overwhelming majority of the United Nations delegates signed the statute, with a promise to bring the document back to their countries for ratification. The United States was one of only seven states to oppose the statute because, it claimed, it contained insufficient safeguards in light of the rights granted by the United States Constitution. This Note addresses …

The Evolution Of The Sprawl Debate In The United States, Robert W. Burchell, Naveed A. Shad

UC Law Environmental Journal

No abstract provided.

Two Sides Of The Same Coin--Hazardous Waste Siting On Indian Reservations And In Minority Communities, Jeffrey R. Cluett

UC Law Environmental Journal

No abstract provided.

The Transferability Of Non-Exclusive Copyright Licenses: A New Default Rule For Software In The Ninth Circuit, Brandon M. Villery

UC Law SF Communications and Entertainment Journal

The merger and acquisition of companies using software technology can generate a need to transfer valuable software licenses from a target company to an acquiring company. As a default rule in the Ninth Circuit, a licensee cannot assign a non-exclusive copyright license without the express authorization of the licensor. Consequently, an acquired licensee may be forced to renegotiate an otherwise valid software license, even if it survives the acquisition and continues to operate as a subsidiary. Understandably, the issue of copyright license transferability continues to pose a problem in mergers, acquisitions and bankruptcies. This note analyzes the Ninth Circuit's decision …

Faun--From Fairies And Fusiliers, Robert Graves

UC Law Environmental Journal

No abstract provided.

Windydaze, James Bartoli

UC Law Environmental Journal

No abstract provided.

"Or Of The Press", Potter Stewart

UC Law Journal

No abstract provided.

Quo Vadis, Prospective Overruling: A Question Of Judicial Responsibility, Roger J. Traynor

UC Law Journal

No abstract provided.

"Here Come De Judge": The Role Of Faith In Progressive Decision-Making, Derrick Bell

UC Law Journal

In this year's Tobriner Memorial Lecture, "Here Come de Judge: The Role of Faith in Progressive Decision-Making," Professor Bell examines the role of minority judges (and the criticisms lodged against them) in judicial efforts to eliminate discrimination and exploitation. Professor Bell argues that decisions that help correct past abuses, such as those upholding affirmative action, are temporary at best because society quickly renders them ineffectual and marginal. Professor Bell further argues that even the minorities who occupy positions of stature within the legal system, such as judges and scholars, are used against the larger minority population because they are held …

New York, Printz, And The Driver's Privacy Protection Act: Has Congress Commandeered The State Department Of Motor Vehicles?, Adam S. Halpern

UC Law Journal

In New York v. United States, the Supreme Court set forth the rule that any federal law which directs state governments to enact specific legislation is per se unconstitutional. The Court characterized these federal laws as attempts to "commandeer" the States' governmental machinery. The Court reaffirmed and extended the so-called "anti-commandeering" principle in Printz v. United States, holding that Congress may not constitutionally pass a law that directs a State's administrative officials to take a particular action. In the wake of these decisions, two U.S. circuit courts of appeals have struck down as unconstitutional the Driver's Privacy Protection Act of …

Preparing Your Music Client For Web Distribution, Stephanie Brauner

UC Law SF Communications and Entertainment Journal

Digital transmission of recordings is becoming an extremely important method of distribution. As this method of distribution becomes increasingly common, attorneys practicing in this industry will be compelled to advise their clients of the choices available in releasing their musical expressions on the Internet. This article provides a basic overview of the digital transmission process, discusses the current state of copyright protections for musicians and the failings in those protections, and will present other viable options that allow for the protection of a client's interests.

Choice Of Entity And Securities Aspects Of Independent Film Offerings By First-Time Filmmakers, Michael L. Maddren

UC Law SF Communications and Entertainment Journal

Independent films have become increasingly common over recent years. It has become increasingly difficult for these first-time filmmakers to obtain studio financing. Filmmakers who cannot obtain studio financing often turn to private investors. A filmmaker seeking private investor financing must confront several legal issues. This article examines the choice of entity and securities law aspects of independent film financing, and makes suggestions for the independent filmmaker facing these issues.

When Cyberspace Meets Main Street: A Primer For Internet Business Modeling In An Evolving Legal Environment, Christopher Paul Boam

UC Law SF Communications and Entertainment Journal

With the increasing use of the World Wide Web, the Internet consumer will, for better or worse, change the "shop around the comer." However, the advent of electronic commerce can have the capacity to be the great equalizer. This technology, which allows the smallest of entrepreneurs to enter millions of households throughout the world also subjects them to innumerable conflicting foreign laws and jurisdictions and magnifies the legal impact of any content errors. The ability to enter the households of millions of unknown persons also poses difficult challenges of identification, privacy, and security. The collective impact of these peculiar characteristics …

You've Got Mud On Your Face: Have Mp3s Turned The Middleman Into Roadkill, Jessica Trivellini Toney

UC Law SF Communications and Entertainment Journal

Moving Picture Expert Group Audio Layer 3, or MP3s, computer audio files transmitted over the Internet, have emerged as powerful challengers to the current music distribution system. MP3s challenge the recording industry on two fronts: piracy and sidestepping industry distribution channels. This note explores how copyright law applies to computer sound files, including MP3s, and demonstrates how advances in MP3 technology have made infringement concerns a significant problem. This note concludes that the record industry must radically change its current marketing scheme and adopt a low cost licensing approach in order to adapt successfully in the digital age.