Law Commons^™

Crowdfunding Delusions, Reza Dibadj

UC Law Business Journal

Beyond all the hype surrounding crowdfunding there is a curious incongruity. On the one hand, there exist apparently successful crowdfunding sites; on the other hand, more than three years after the Jumpstart Our Business Act (“JOBS Act”) mandated an equity crowdfunding exception, we are still waiting for final regulations from the Securities and Exchange Commission.

This essay explores this irony, arguing that existing crowdfunding sites carefully manage around a fundamental ambiguity in the securities laws—a surprisingly fuzzy definition of what a “security” is. It then shifts to understanding the existing regulatory framework: the federal crowdfunding statute and proposed rules, as …

Employee Perks In Silicon Valley: Technology Companies Lead The “Arms Race” As Corporate Law Trails In Representing Shareholder Interests, Thuy Nguyen

UC Law Business Journal

Within the last decade, Silicon Valley technology companies have increasingly engaged in a practice of providing nontraditional perks to employees, in what has been characterized as an “arms race” to attract engineering talent. As this practice expands throughout Silicon Valley, so do the costs associated with providing these perks. While companies view the practice as a tool to recruit talent, boost productivity, and increase efficiency, the IRS’s renewed interest in scrutinizing the tax laws casts doubt on whether these stated objectives would remain robust in the future.

This Note focuses on the practice of providing employee perks from a shareholder …

Federal Sentencing In The States: Some Thoughts On Federal Grants And State Imprisonment, John F. Pfaff

UC Law Journal

As the movement to reduce the outsized scale of U.S. incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly ninety percent of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control. In this Article, I examine one way in which the federal government might be driving up state incarceration rates, and thus one way it can …

A Message From The Editor-In-Chief, Emily Goldberg Knox

UC Law Journal

Sixty-six years after the founding of the Hastings Law Journal, much has changed. The times of physically turning a page are all but gone. Now we prefer the swipe of a finger or the click of a mouse. It is a challenge for long-standing institutions to keep up with the times. Inertia is powerful—it is far easier to watch things change than change with the times. Nevertheless, this year, Hastings Law Journal met the challenge head on. In addition to overhauling our website, we launched SCOCABlog, a blog dedicated to covering the Supreme Court of California. Launching a blog, I …

Keynote Address: Federal Sentencing Reform Ten Years After United States V. Booker, Charles R. Breyer Hon.

UC Law Journal

Hon. Charles R. Breyer gave the keynote address for Hastings Law Journal’s Federal Sentencing Reform Symposium held on February 13, 2015. Professor Rory Little provided the introduction.

Merit-Based Sentencing Reductions: Moving Forward On Specifics, And Some Critique Of The New Model Penal Code, Rory K. Little

UC Law Journal

In the Essay that follows, Michael Santos tells a remarkable story. Arrested at age twenty-three, Santos served twenty-six years in the federal prison system. While in prison, Santos published articles and books, and earned college and master’s degrees, despite what he describes as affirmatively obstructionist decisions by “corrections” personnel. Immediately after his release in 2013, Santos began lecturing at a respected state university. Today, he has a website; course materials for persons facing lengthy prison sentences; scores of supporters and mentors; and the charisma and character to hold a law symposium audience spellbound for every minute of his thirty-minute presentation. …

Unmasking Mullane: Due Process, Common Trust Funds, And The Class Action Wars, John Leubsdorf

UC Law Journal

Although Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) is a classic Civil Procedure case, its history has never before been written. This Article reveals that history, traced among other sources, in the papers of New York’s Governor Herbert Lehman, whose misgivings did not prevent his signing the legislation that the Supreme Court struck down, and of Justice Robert Jackson, who wrote the opinion striking it down. More or less behind the scenes, two struggles were going on. One involved and prefigured all of the tensions of the modern class action: conflicts within the class, the …

Appealing To Reason-Able Expectations Of Privacy: Increasing Appellate Review Under Ecpa, Andrew Tyler Ohlert

UC Law Journal

The Snowden revelations of 2013 sparked widespread, public discussion about the amount of government surveillance performed on American citizens under the Foreign Intelligence Surveillance Act. This dialogue often sidesteps the Electronic Communications Privacy Act, however, which is the primary statute that governs the government’s ability to obtain the electronic communications of everyday citizens. The vast majority of requests for information under ECPA are pursued ex parte, and often without notice to a targeted individual that the government has obtained her information. This secrecy regime leaves targeted individuals unable to oppose the government or appeal adverse decisions. Moreover, if a magistrate …

Incentivizing Excellence: A Suggestion For Merit-Based Reductions From A Twenty-Six-Year Federal Prison Insider, Michael Santos

UC Law Journal

America’s prison population has soared since the early 1970s, when a commitment to mass incarceration began. We now incarcerate more people than any other nation. Further, recidivism rates show that the longer we expose people to “corrections,” the less likely those people become to emerge as law-abiding, contributing citizens. As Justice Kennedy has said, our nation incarcerates far too many people, and they serve sentences that are far too long. We can improve the outcomes of our nation’s prison system by incentivizing a pursuit of excellence, creating mechanisms through which people in prison can earn freedom in gradually increasing levels …

Constitutional Law, Moral Judgment, And The Supreme Court As Super-Legislature, Brian Leiter

UC Law Journal

I propose to defend and explore three claims in this Essay. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the Supreme Court. There, the Court operates as a kind of super-legislature, albeit one with limited jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues that are brought before it; and second, the Court is constrained, to some extent, by its past decisions and by constitutional and legislative texts. The problem, however, is that those constraints underdetermine …

A Response To Professor Brian Leiter, Joseph R. Grodin

UC Law Journal

The editors of Hastings Law Journal have invited me to comment on Professor Brian Leiter’s provocative essay, Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature, and I have undertaken to do so, not so much because I disagree with what he says—in fact, I agree with much of his thesis—but because what he says points to questions which deserve further consideration. . .

New York City Rules! Regulatory Models For Environmental And Public Health, Jason J. Czarnezki

UC Law Journal

Scholars have become increasingly interested in facilitating improvement in environmental and public health at the local level. Over the last few years, former New York City Mayor Michael Bloomberg and the New York City Council have proposed and adopted numerous environmental and public health initiatives, providing a useful case study for analyzing the development and success (or failure) of various regulatory tools, and offering larger lessons about regulation that can be extrapolated to other substantive areas. This Article, first, seeks to categorize and evaluate these “New York Rules,” creating a new taxonomy to understand different types of regulation. These “New …

In And Out—Contract Doctrines In Action, Danielle Kie Hart

UC Law Journal

This Article was written to test a hypothesis, namely, that it is easy to get into a contract but very difficult to get out of one. After reviewing case law from the Seventh and Ninth Circuits, contract law in action suggests that reality may be slightly different from theory. That is, the data from the cases show that it may not be so easy to get into a contract in practice, but it is extremely difficult to get out of one. Pacta sunt servanda seems to be alive and well in twenty-first century contract law. Perhaps the more significant finding …

Piercing The Privacy Veil: Toward A Saner Balancing Of Privacy And Health In Cases Of Severe Mental Illness, Jorgio Castro

UC Law Journal

On November 19, 2013, Virginia state senator and former candidate for governor Robert Creigh Deeds suffered a high-profile attack from his son, who had been diagnosed with schizophrenia, resulting in permanent injuries to himself and his son’s self-inflicted death. On June 16, 2015, Senator Deeds addressed Congress to highlight one of the biggest challenges to providing adequate intervention and support for his son—the HIPAA Privacy Rule’s restriction on the release of protected health information to family caretakers. Senator Deeds’s high-profile story emerged as a national indication of a serious problem: the immense difficulty experienced by families trying to obtain critical …

Idea Theft: Frivolous Copyright-Lite Claims, Or Hollywood Business Model?, K. J. Greene

UC Law Science and Technology Journal

Two facts regarding idea theft in the creative context are undeniable—first, that idea misappropriation claims against Hollywood studios and television producers are rampant, and second, that the hodge-podge legal regime surrounding idea submission claims is in disarray. Institutional entertainment industry players, such as major Hollywood studios, dismiss idea theft claims as fake and frivolous, a kind of “copyrightlite” claim brought by unsuccessful wannabe writers and producers. In contrast, non-established creators seeking entry to the elite and lucrative world of Hollywood tell another tale—that of an industry that relies on the creative ides of outsiders, and fleeces idea submitters as a …

Trolling For An Npe Solution, Jared A. Smith, Nicholas R. Transier

UC Law Science and Technology Journal

An all-out war is being waged against patent trolls in every corner of the government. But why? To answer that question, this note considers a wide range of laws, rules, decisions, and other measures being offered up as a solution to the “troll problem.” In doing so, this note seeks to identify the potential issues with various proposed “solutions,” including their impact not only on patent trolls, but also, arguably more importantly, on the patent system as a whole. Finally, this note concludes with a set of recommendations meant to combat the most insidious patent trolling tactics, while protecting the …

Developing Drop Discipline: Training And Testing Operators Of Small Unmanned Aircraft Systems, Henry H. Perritt Jr., Eliot O. Sprague

UC Law Science and Technology Journal

This is the third in a series of articles about drones by the co-authors. The first, Drones, introduces the subject and explores the technologies that makes microdrones so useful and so inexpensive. It provides an overview of technological, economic, political, and regulatory issues that the second article and this one explore more deeply. The second article, Law Abiding Drones, argues that the character of microdrones justifies simplified regulation as consumer products, with automated flight control and safety systems that make flying them easy, compared with airplanes and helicopters. This article focuses on the question of operator qualifications. It does not …

The Intersection Of Patents And Trade Secrets, Michael R. Mcgurk, Jia W. Lu

UC Law Science and Technology Journal

An old retort in politics is “You’re either a Democrat or a Republican!” Likewise, the counterpart retort in Intellectual Property for companies back in the day was “You’re either a patent company or a trade secret company!” Patents and trade secrets are the only two forms of intellectual property that protect information—patents protect patentable (innovation) information, while trade secrets can protect patentable information and any other information providing economic value to the holder. In fact, it is not uncommon for patents and trade secrets to protect the same information. However, the bodies of laws governing each are far from similar. …

The Delaware Carve-Out's Carve: Examining And Repairing Slusa's State Law Exception, Kenneth Hsu

UC Law Business Journal

The "Delaware carve-out” is a carefully written savings clause that preserves state law claims that would otherwise be dismissible under SLUSA preclusion. The carve-out's broad statutory language, however, does not provide much clarity for parties litigating its applicability. While three circuit level opinions have addressed particular portions of the carve-out's text, none have offered a controlling understanding of the statute. The carve-out's precise scope instead remains largely defined by an assortment of lower court decisions relying on different interpretations of the statutory language and of related case law. Amid such uncertainty, this note seeks to discern some clarity to the …

A Look At Tradekey: Shifting Policing Burdens From Trademark Owners To Online Marketplaces, Ashley Bumatay

UC Law Business Journal

This note addresses contributory counterfeiting within online marketplaces. Contributory counterfeiting arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for the direct counterfeiting carried out by a third party. This note argues that online marketplaces should be required to take a more active role in combating counterfeiting through their platforms. This note proceeds in five parts. Part I serves as an introduction to the issue. Part II provides background information regarding trademark counterfeiting and gives an overview of the case law regarding contributory counterfeiting in online marketplaces. Part III looks at the implications of the TradeKey …

Evading The Transparency Tragedy: The Legal Enforcement Of Corporate Sustainability Reporting, Chloe Ghoogassian

UC Law Business Journal

Although sustainability reporting is a mechanism for improving labor and human rights practices in global supply chains, it has had limited effects to date because of its voluntary nature. Embracing a uniform reporting standard and making companies legally accountable for the veracity and completeness of their disclosures could enhance the efficacy of sustainability reporting. Generally, this Note explores how such a system could be structured.

Part II of this note describes the Global Reporting Initiative ("GRI") as a case study of sustainability reporting and some of its shortcomings. Specifically, Part II will address how the voluntary nature of GRI's Reporting …

The Treaty Shopping Practice: Corporate Structuring And Restructuring To Gain Access To Investment Treaties And Arbitration, Julien Chaisse

UC Law Business Journal

This article analyzes the magnitude of the treaty shopping practice and draws relevant theoretical and policy implications for proper rule-making. This fills the gap in the literature, as it is based on a comprehensive survey of tribunal awards to assess the real prevalence of treaty shopping. Also, observing that in all systems of law, whether domestic or international, there are concepts framed in order to avoid misuse of the law; reference may be made in this respect to "good faith" ("bonne foi"), "détournement de pouvoir" (misuse of power) or "abus de droit" (abuse of right), this Article seeks to identify …

Activist Compensation Of Board Nominees And The Middle Ground Response, Adam Prestidge

UC Law Business Journal

Shareholder activism has taken an increasingly high-profile and polarizing role in investing and corporate governance. Moves by shareholder activists, and the policy behind those moves, constantly appear in corporate headlines. One of shareholder activists' primary methods of enacting changes in companies is to nominate directors to the board, and often those director nominees are highly compensated by the shareholder activist itself. Some in the corporate world oppose this practice, arguing that it creates a significant conflict of interest and can damage the company in the short term, while others argue that the practice is a necessary tool for investors that …

Constitutional Constraints On Punitive Damages: Clarity, Consistency, And The Outlier Dilemma, Laura J. Hines, N. William Hines

UC Law Journal

Almost twenty years ago, the Supreme Court in BMW v. Gore invoked the Due Process Clause for the first time to invalidate a punitive damages award as excessive. Since then, the Court has issued a handful of decisions that further refine Gore’s tripartite guidepost framework. In this Article, we draw on a ten-year span of reported state and federal punitive damages decisions in an attempt to evaluate how lower courts have understood and implemented this constitutionalization of punitive damages law. Ours is not a normative analysis about whether the Court should or should not have federalized punitive damages. Rather, we …

Consumption By Destination: The Practical Aspects Of Adopting The Destination Principle, Gerald A. Byrnes

UC Law Journal

Corporate tax reform has been a “hot button” tax issue for numerous years now. The complex and inefficient double taxation model has proven to be particularly ill equipped to properly tax large multinational entities. One popular idea to solve these concerns is to switch to a consumption tax. However, there are still questions about how to model said tax, particularly in the international context: should a country tax be based on where products are destined for, or on where they originate? This Note focuses on the practical appeal of preferring the destination principle to the origin principle, should the United …

Capital Accounts: Bank Capital, Crises, And The Determinants Of An Optimal Regulatory Approach, John Crawford

UC Law Journal

Suppose a woman named Kate wants to start a bank. She has $5 of her own and knows a creditworthy entrepreneur (Will) who needs a $100 loan for a new project. She also knows lots of people who would happily deposit their savings with her. Should regulators permit Kate’s bank to borrow (from depositors) the extra $95 she needs to lend to Will? Or should it require her to borrow less and put up more of her own money before extending the loan? How much does it matter to financial stability? Two superb accounts of the 2007–2008 financial crisis and …

I Hear America Suing: Music Copyright Infringement In The Era Of Electronic Sound, Charles Cronin

UC Law Journal

Twentieth-century developments in audio recording, copying, and broadcast technologies thoroughly altered not only how popular music is distributed and consumed, but also how it is created. By the 1960s, sound recording technologies had become so refined, ubiquitous, and economically accessible that they—and no longer music notation—had become the primary means by which popular songs were created and documented. Audio technologies democratized authorship of popular music, but also led to the gradual lessening of original primary musical parameters (melody in particular) in many popular genres. Paradoxically, despite this general diminishment in original musical expression, the number of music infringement claims has …

Marriage As Black Citizenship?, R. A. Lenhardt

UC Law Journal

The narrative of black marriage as citizenship enhancing has been pervasive in American history. As we mark the fiftieth anniversary of the Moynihan Report and prepare to celebrate the 150th anniversary of Thirteenth Amendment, this Article argues that this narrative is one that we should resist. The complete story of marriage is one that involves racial subordination and caste. Even as the Supreme Court stands to extend marriage rights to LGBT couples, the Article maintains that we should embrace nonmarriage as a legitimate frame for black loving relationships—gay or straight. Nonmarriage might do just as much, if not more, to …

Revoking Rights, Craig J. Konnoth

UC Law Journal

In important areas of law, such as the vested rights doctrine, and in several important cases—including those involving the continued validity of same-sex marriages and the Affordable Care Act—courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

Keeping The News Domestic: Why A Toxic Environment For The American Press And Ready Access To Foreign Media Organizations Like Wikileaks Compel The Rapid Adoption Of A Federal Reporters’ Privilege, Ryan C. Stevens

UC Law Journal

In 2008, the U.S. Department of Justice subpoenaed James Risen, a Pulitzer Prize winning New York Times journalist, to testify against one of his confidential sources in a criminal proceeding against that source. After Risen fought the subpoena and it expired in 2009, the Justice Department renewed it in 2010. The saga that followed brought a mass of media attention to the debate over the idea of a testimonial privilege for news reporters. While debates over the reporters’ privilege have raged since the Supreme Court first denied the privilege in 1972, this Note examines the overlooked effect that WikiLeaks has …