Law Commons^™

Procedural Due Process Liberty Interests, Ann Woolhandler

UC Law Constitutional Quarterly

The Supreme Court's divided decision inKerry v. Din, 135 S. Ct. 2128 (2015), shows the difficulty of defining liberty for purposes of procedural due process. Din, a United States citizen, claimed that she had been denied procedural due process when the State Department refused to grant an immigrant visa to her husband. Justice Scalia's plurality opinion reasoned that Din had no liberty interest protected by procedural due process, while Justice Breyer's dissent concluded that Din had such an interest based on fundamental rights involving marriage, the right of citizens to reside in the country, and statutory immigration preferences for spouses. …

Waiving Goodbye: In Memory Of The Reasonable-Doubt Standard, Steven Wall

UC Law Constitutional Quarterly

This Note will focus on the unique helplessness of innocent defendants who have plead guilty in cases involving governmental misconduct. The Supreme Court has recognized that our criminal justice system is, for the most part, a system of pleas rather than trials. Unfortunately, there are many indications that innocent people plead guilty. The most developed realm of law being used to push for measures to reduce the occurrence of this phenomena is the body of cases stemming from Brady v. Maryland. Brady v. Maryland requires prosecutors to disclose material exculpatory evidence (evidence demonstrating actual innocence) and impeaching evidence at trial. …

The Hidden Costs Of Cliff Effects In The Internal Revenue Code And Proposals For Change, Manoj Viswanathan

Faculty Scholarship

Cliff effects in the Internal Revenue Code trigger a sudden increase of federal tax liability when some attribute of a taxpayer—most commonly income—exceeds a particular threshold value. As a result, two taxpayers in nearly identical economic situations can face considerably different tax liabilities depending on which side of the triggering criterion they fall. The magnitude of the equity and efficiency costs associated with cliff effects is significant: cliff effects are attached to tax provisions amounting to hundreds of billions of dollars, the majority of which are targeted at low- and moderate-income taxpayers. Cliff effects have received little attention in legal …

Are Asian Americans Now White?, Frank H. Wu

Faculty Scholarship

No abstract provided.

The End(S) Of Legal Education, Frank H. Wu

Faculty Scholarship

Legal education is in jeopardy. There is no longer sufficient demand for the juris doctor degree from prospective students; the supply of seats exceeds the number of applicants possessing the credentials that have until recently been preferred by each respective institution. As a consequence, schools have had to implement “tuition discounting” at unprecedented levels even to enroll fewer individuals who are less qualified by conventional predictors. Meanwhile, the mainstream press, with encouragement from the organized bar, has excoriated the legal academy for its failures, whether real or perceived. These critics have wondered about the “return on investment.”

The Rule Of Law And Ethical Integrity: Does Haiti Need A Code Of Legal Ethics?, Kate Bloch, Roxanne Edmond-Dimanche

Faculty Scholarship

No abstract provided.

Tools For Change: Boosting The Retention Of Women In The Stem Pipeline, Joan C. Williams, Katherine W. Phillips, Erika V. Hall

Faculty Scholarship

This study details how gender bias plays out in everyday workplace interactions in science, technology, engineering, and math (STEM). It is based on in-depth interviews with 60 women scientists of color (chiefly professors), and a survey of 557 women scientists (of all races). Different types of gender bias were reported at different rates. Prescriptive gender bias was most common (76.3% of women interviewed reported it), followed by descriptive gender bias (66.7%) and gender bias triggered by motherhood (64.0%); just over half of the women interviewed (55.3%) reported situations in which gender bias against women fueled conflicts among women. The survey …

New Kids On The Blockchain: How Bitcoin’S Technology Could Reinvent The Stock Market, Larissa Lee

UC Law Business Journal

Bitcoin is the first and most successful digital currency in the world. It polarizes the news almost daily, with either glowing reviews of the many benefits of an alternative and international currency, or doomsday predictions of anarchy, deflation, and another tulip bubble.

This article focuses on the truly innovative aspect of Bitcoin - and that which has gone mostly unnoticed since its inception - the technological platform used to transfer Bitcoin from one party to another. This technology is called the Blockchain. The Blockchain eschews a bank or other intermediary and allows parties to transfer funds directly to one another, …

Fully And Barely Clothed: Case Studies In Gender And Religious Employment Discrimination In The Wake Of Citizens United And Hobby Lobby, Suneal Bedi

UC Law Business Journal

In 2010, the Supreme Court handed down its decision in Citizens United v. Federal Election Commission. The Court held that for-profit corporations could receive First Amendment protection for political speech. Then, in 2014, the Court held in Burwell v. Hobby Lobby that closely held for-profit corporations could be considered persons under the Religious Freedom Restoration Act. These cases have spurred much scholarship focusing on the treatment of corporations as people and citizens. While supporters argue that these cases are consistent with corporate and First Amendment law, critics argue that the implications of these decisions could be perverse.

This article contributes …

The Elephant In The Room: An Empirical Study Of Piercing The Corporate Veil In The Jurisdictional Context, King Fung Tsang

UC Law Business Journal

No abstract provided.

Credit Bidding: Expanding The “For Cause” Exception Under Section 363(K) Of The Bankruptcy Code, Austin Harms

UC Law Business Journal

As auctions have become more prominent in Chapter 11 proceedings, credit bidding has bolstered the multi-decade trend of secured creditor dominance, which the Supreme Court sustained in 2012. Since this 2012 decision, bankruptcy courts have attempted to level the playing field by progressively expanding the interpretation of Section 363(k) of the Bankruptcy Code, which permits courts to limit secured creditors' ability to credit bid "for cause." The conflict between the Supreme Court's 2012 decision and the bankruptcy courts' recent interpretation of Section 363(k) created an uncertainty that currently plagues the market for secured claims of distressed companies. This Note reviews …

The Restatement (Fourth) Of Foreign Relations Law: Discouraging State Courts From Recognizing Foreign- Country Money Judgments In Absence Of Debtor’S Assets, Debashish Bakshi

UC Law Business Journal

No abstract provided.

Asian/American/Alien: Birth Tourism, The Racialization Of Asians, And The Identity Of The American Citizen, Mehera Nori

UC Law SF Journal on Gender and Justice

The challenges faced by Asians and Asian Americans are typically left out of the discussion when it comes to the media's depiction of the complexities behind immigration policies in the United States. Yet, behind the scenes, the rise of birth tourism as a major form of Asian immigration to the United States continues to grow. Birth tourism encompasses medical facilities that provide childbearing services to foreign women who wish to receive care in the United States, which results in the child having American citizenship. This note highlights the growing impact of birth tourism on Asian immigrants and the redefining of …

Police Terror And Officer Indemnification, Allyssa Villanueva

UC Law Journal of Race and Economic Justice

Police accountability has quickly pressed to the forefront of national conversations and subsequently, the national political agenda. Increasing prevalence of excessive and lethal use of force by police officers induced this attention. President Obama convened a Task Force on 21st Century Policing, after the Department of Justice conducted several pattern and practice investigation of misconduct following the high‐profile deaths of unarmed Michael Brown and Eric Garner. Their deaths both resulted in no criminal charges against responsible officers. Civil suit was the only option left for officer accountability. This Note addresses the use of 42 U.S.C. §1983 as the common civil …

The Obergefell Marriage Equality Decision, With Its Emphasis On Human Dignity, And A Fundamental Right To Food Security, Maxine D. Goodman

UC Law Journal of Race and Economic Justice

Today, the welfare rights movement has faltered. However, the Supreme Court’s recent marriage equality decision, with its emphasis on human dignity, lends hope to the notion that the Court should also acknowledge a right to food security. This Article identifies the role human dignity has served in the Court’s constitutional analysis to acknowledge and protect, for example, rights to privacy, to travel, to be heard, to self‐representation, to marry, to speak freely, and to preserve bodily integrity. According to the Court, these rights are all a part of liberty. Arguably, and as FDR said, “[i]f, as our Constitution tells us, …

Integrate And Reactivate The 1968 Fair Housing Mandate, Courtney L. Anderson

UC Law Journal of Race and Economic Justice

The Fair Housing Act of 1968 (“FHA”) was created to eliminate discrimination in the sale, rental and financing of housing, and to mandate affirmative actions be taken to develop fair housing throughout the United States. Numerous scholars and practitioners have lamented both the failure of the FHA to enforce its sections calling for government entities to affirmatively further fair housing, and the narrow interpretation of the FHA. This narrow interpretation has effectively rendered the FHA useless when a plaintiff claims that environmental ills have reduced the value and livability of homes, because these “non‐housing” claims are too far removed from …

La Gran Lucha: Latina And Latino Lawyers, Breaking The Law On Principle, And Confronting The Risks Of Representation, Marc‐Tizoc González

UC Law Journal of Race and Economic Justice

In a time when people in the United States have been taking to the streets en masse to protest unjust socio‐legal conditions like police brutality and the draconian enforcement of immigration laws, the time is ripe to reconceptualize what it means to break the law on principle. Twenty five years ago, Harvard Law Dean Martha L. Minow conceptualized “the risks of representation” for lawyers whose clients “entertain breaking the law as one of their strategies for achieving social change.” Responding substantively to Minow’s ideas, Houston Law Professor Michael A. Olivas presented three case studies to illuminate the risks of nonrepresentation, …

Legal Indeterminacy In Insanity Cases: Clarifying Wrongfulness And Applying A Triadic Approach To Forensic Evaluations, Kate Bloch, Jeffery Gould

Faculty Scholarship

No abstract provided.

Civil Procedure Rules For European Courts, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Bridging Rule Of Law Theory And Implementation: The Role Of Professional Ethical Integrity,, Kate Bloch

Faculty Scholarship

No abstract provided.

Cross-Cultural Challenges, Consensus, And Opportunities For Advancing The Professional Ethical Integrity Of Legal System Actors, Rory Little

Faculty Scholarship

No abstract provided.

Examining The Americans With Disabilities Act's Reassignment Provision Through An Equal Protection Lens, Danielle Bogaards

UC Law Constitutional Quarterly

Disabled employees were given equal protection rights when Congress acted under Section 5 of the Fourteenth Amendment to enact the Americans with Disabilities Act ("ADA"). This note begins by analyzing the ADA's reassignment provision, which is triggered when a current employee becomes disabled and can no longer perform the essential tasks of his or her current position. The ADA considers various forms of accommodations the employer may provide; yet circuit courts are split when faced with application of the ADA's reassignment provision because it is often used as a last resort before termination. More specifically, when an employer has a …

Overcoming The Public-Private Divide In Privacy Analogies, Victoria Schwartz

UC Law Journal

When a photographer takes unauthorized aerial photographs of a company’s plant, the legal framework under which courts evaluate the case, as well as its likely outcome, depends on whether the photographer was hired by a private actor or the government. If a competitor hired the photographer, the aerial photography may constitute improper trade secret misappropriation. If, however, the government hired the photographer, the aerial photography would not violate the Fourth Amendment. This dichotomy illustrates a public-private divide in which privacy violations by the government are treated differently from privacy violations by the private sector. Despite this divide, some courts have …

The Problem Of Reverse Payments In The Pharmaceutical Industry Following Actavis, Traci Aoki

UC Law Journal

Reverse payments are payments that are made as a component of a patent infringement settlement, between a brand-name pharmaceutical company to a competitor who is attempting to market a generic version of the patented brand-name drug. The patentee not only drops its patent infringement suit against the generic manufacturer, but also compensates this alleged infringer. Reverse payment settlements raise antitrust concerns because they suggest that the generic manufacturer could have proved the brand-name’s patent either invalid or non-infringed, and thus entered the marketplace to provide consumers with lower priced generic drugs, if they had continued with the litigation. This also …

Disruptive Innovation: New Models Of Legal Practice, Joan C. Williams, Aaron Platt, Jessica Lee

UC Law Journal

For decades, lawyers have been complaining that they hate working at law firms, and clients have expressed increasing frustration with high legal fees. But complaining is as far as either group went, until recently. This is perhaps the first attempt at a comprehensive review of a wide variety of new business organizations that have arisen in recent years to remedy the market’s failure to deliver business organizations responsive to the complaints of either lawyers or of clients. The “New Models of Legal Practice” described here typically offer a new value proposition for lawyers and clients. For lawyers, New Models offer …

Databasing Delinquency, Kevin Lapp

UC Law Journal

Technological advances in recent decades have enabled an unprecedented level of surveillance by the government and permitted law enforcement to gather, store, and retrieve in real time enormous amounts of data. After nearly a century of limited record-making and enhanced confidentiality regarding juveniles, these data collection practices have quickly expanded to include youth. This Article uncovers the vast extent of modern data collection and distribution about juveniles by the criminal justice system from juvenile sex offender registration and their inclusion in gang and DNA databases, to schools turned into mandated law enforcement informants, to police and courts increasingly sharing juvenile …

Resurrecting Health Care Rate Regulation, Erin C. Fuse Brown

UC Law Journal

Our excess health care spending in the United States is driven largely by our high health care prices. Our prices are so high because they are undisciplined by market forces, in a health care system rife with market failures, which include information asymmetries, noncompetitive levels of provider market concentration, moral hazard created by health insurance, multiple principal-agent relationships with misaligned incentives, and externalities from unwarranted price variation and discrimination. These health care market failures invite a regulatory solution. An array of legal and policy solutions are typically advanced to control our health care prices and spending, including: (1) market solutions …

Whaling In Circles: The Makahs, The International Whaling Commission, And Aboriginal Subsistence Whaling, Monder Khoury

UC Law Journal

In Anderson v. Evans, the Ninth Circuit held that the International Whaling Commission (“IWC”) Schedule’s approval of a quota to hunt whales for the Native American Makah Tribe (“Makahs”) violated the Marine Mammal Protection Act. The implications of this holding were troubling: despite the U.S. government and the IWC approving, on domestic and international levels, the Makahs’ whaling proposal in the 1990s, the Makahs were still unable to hunt whales legally. The Makahs’ right to whale stemmed from the 1855 Neah Bay Treaty, an agreement between the Makahs and the U.S. government in which the government promised the Makahs the …

A Message From The Editor-In-Chief, Lesley Rae Hamilton

UC Law Journal

It is a dynamic time for the legal profession. Law firms, big and small, are innovating the way they run their businesses and deliver their services, resulting in positive changes for both clients and attorneys. On the one hand, firms are increasingly placing emphasis on delivering value to clients at a faster rate and for lower fees than ever before through adjustments to the types of services they offer and the manner in which they deliver them. Lawyers, also, are benefitting as legal employers increasingly offer innovative approaches to schedule flexibility, discretionary billing rates, and attorney entrepreneurialism to appeal to …

Institutionalized Disruption: The Rise Of The Reformer Startup, Abraham J.B. Cable

UC Law Business Journal

This essay emerges from a joint symposium of the Hastings Business Law Journal and the Hastings Science and Technology Law Journal entitled “Regulating the Disruption Economy: Tech Startups as Regulatory Reformers.” The symposium featured panels on virtual currency, crowdfunding, and the sharing economy.

Drawing from the symposium, this essay considers why startups are increasingly taking up the mantle of regulatory reform, how they are achieving their successes, and whether this is a positive development for our political economy. It tentatively proposes that: (1) features of the current venture capitalist market and startup ecosystem, rather than the pace of technological advancement, …