Law Commons^™

Medicaid As Coverture, Thomas E. Simmons

UC Law SF Journal on Gender and Justice

Antiquated views of women’s property rights and the status conferred by a marital relationship deprived a woman of separate property rights, treated the spouses as one unit incapable of contracting with one another, and transferred liability for one spouse’s debts to the other. These archaic, even offensive laws were largely repealed in the mid-nineteenth century. Today, women expect to enjoy a legal existence that is not consumed by the status of marriage, and to exercise property rights largely free from interference or paternalism. An examination of Medicaid eligibility rules reveals the retention and even reinstatement of the legal fiction of …

Moving Beyond Race: The Joint Committee On Reconstruction And The Drafting Of The Fourteenth Amendment, Earl M. Maltz

UC Law Constitutional Quarterly

April 28th, 1866 was by any standard, a pivotal moment in the evolution of American constitutional law. On that date, the Joint Committee on Reconstruction voted to replace a provision of the proposed Fourteenth Amendment that focused only on racial discrimination with the current text of section one. This decision created the predicate for much of modern constitutional law, including but not limited to the Court's treatment of gender discrimination, abortion, gay rights, criminal procedure, and freedom of speech.

This article provides a detailed analysis of the forces that shaped the Joint Committee's decision. The article contends that the decision …

Racism 4.0, Civity, And Re-Constitution, Palma Joy Strand

UC Law Constitutional Quarterly

Racism is deeply imbedded in our culture and can be grouped into four distinct manifestations over the multi-century arc of our nation's history. These manifestations are identified as Racism 1.0, Racism 2.0, Racism 3.0, and-the current "operating system"--Racism 4.0. Racism 1.0 and 2.0 include slavery and the reign of violence and lynching during which Whites sought to control and marginalize Blacks, primarily but not exclusively in the South. In the South, Racism 3.0 took the form of "Jim Crow," legislatively enacted separation by race with "separate but equal" rhetoric and "separate and unequal" reality. The Civil Rights Movement and its …

The Costs And Benefits Of Regulatory Intervention In Internet Disputes: Lessons From Broadcast Signal Retransmission Consent Negotiations, Rob Frieden

UC Law SF Communications and Entertainment Journal

The Internet increasingly provides an alternative distribution medium for video and other types of high value, bandwidth intensive content commonly called Internet Protocol Television ("IPTV"). While many consumers have become indifferent about their wire line or wireless service provider, they expect their video service providers to offer access anytime, anywhere, via any device, and in any format. These early adopters of new technologies have no patience with the concept of "appointment television" that limits access to a specific time, presentation, and channel. My article offers a clear assessment of whether and how the FCC can resolve disputes that can prevent …

Richard Sherman, Rhetoric, And Racial Animus In The Rebirth Of The Bogeyman Myth, Nick J. Sciullo

UC Law SF Communications and Entertainment Journal

After the Seattle Seahawks won the NFC Championship game, the postgame interview of Richard Sherman, a defensive back for the Seahawks, became subject to racialized discourse in the media. This article draws upon important concepts of black danger, blackness and the media, and racial animus to explain how media pundits and online commentaries about the interview have created a modem-day version of the bogeyman. In so doing, the article theorizes a new logic to racial animus-the myth of the bogeyman-to expound on the confluence of race, law, and sports. This new approach will help to explain covert racism in the …

Recovery Of Nazi-Related Art: Legal Aspects Under German And U.S. Law Exemplified By The Gurlitt Case, Michael Rebholz

UC Law SF Communications and Entertainment Journal

Since November 3, 2013, a case regarding Nazi-looted art-known as the Gurlitt casehas garnered the attention of the media and the art industry in both Germany and the United States. This case arose from German authority's confiscation of approximately 1500 pieces of valuable art found in Cornelius Gurlitt's apartments in Germany and Austria. He claimed that he was the legal owner of the artworks that people believed to have been destroyed during World War It. This article first answers the question of how this case would be resolved under German law by focusing primarily on the question of whether Cornelius …

Transformative Use And The Right Of Publicity: A Relationship Ready For Revision, Justin L. Rand

UC Law SF Communications and Entertainment Journal

The only consistency in right of publicity jurisprudence has been inconsistency. The right can be defined as the ability to control the commercial use of one's identity, and its scope has varied from state to state and era to era. While aspects of the right of publicity partially overlap with copyright and trademark, its historical origins and underlying policy justifications are distinct. Indeed, understanding the unique position of the right has become increasingly important in the digital revolution, where celebrities are vigorously fighting to protect their identities from outside, commercial exploitation. Yet, in their efforts to monetize their names, images, …

Access To Information About Lethal Injections: A First Amendment Theory Perspective On Creating A New Constitutional Right, Clay Calvert, Emma Morehart, Kéran Billaud, Kevin Bruckenstein

UC Law SF Communications and Entertainment Journal

This article examines, through the lens of First Amendment theory, current judicial debate regarding the access rights of inmates and the public to detailed facts about lethal- injection drugs, personnel, and procedures. The article uses several 2014 appellate court disputes as analytical springboards, including the U.S. Court of Appeals for the Ninth Circuit’s groundbreaking decision in Wood v. Ryan. The article argues that the First Amendment doctrine developed by the U.S. Supreme Court in Press-Enterprise II too narrowly cabins and confines access rights in lethal-injection data cases. In contrast, three venerable theories of free expression–the marketplace of ideas, democratic self-governance, …

Adopting Subsequent Remuneration Right In Chinese Copyright Law, Xi Chen

UC Law SF Communications and Entertainment Journal

One heavily and contentiously argued clause in Chinese Copyright Law amendment drafts focuses on the practicality of granting authors of audiovisual works the legal right to collect subsequent remunerations (“SRR”) when their works are reused in subsequent exploitations. With the rapid increase of social media channels for the Chinese movie industry, and other entertainment industries relying on a heavy usage of audiovisual work, authors demand that they should be entitled to the profit earned from derivative markets and other media channels beyond the first intended market. In order to balance the conflicting interest between the author and the producer, and …

Why Should We Care What Fitbit Shares?: A Proposed Statutory Solution To Protect Sensitive Personal Fitness Information, Michelle M. Christovich

UC Law SF Communications and Entertainment Journal

This note examines the privacy implications of fitness trackers, devices such as Fitbit, which measure users’ movements, fitness habits, and overall health in granular detail. This note explores the privacy dangers of using fitness trackers generally and in the specific context of the workplace and Big Data. This note also draws parallels between the personal health information protected by the Health Information Portability and Accountability Act (“HIPAA”) and the personal fitness information collected by fitness trackers. This note argues that a statutory scheme, modeled after HIPAA, should be established in order to protect the sensitive personal fitness information gathered by …

Holistic Pregnancy: Rejecting The Theory Of The Adversarial Mother, Rona Kaufman Kitchen

UC Law SF Journal on Gender and Justice

In its zealous effort to protect the lives and health of unborn children, the law frequently views the expecting mother with suspicion. In its most extreme form, the law regards the potential mother as a potential murderess. This perspective does not reflect the nature of pregnancy, it undermines the autonomy of loving mothers, and it is detrimental to children. Regardless of whether there is any conflict between mother and fetus, the State presumes the mother to be a threat to her fetus and subjugates her rights as a result. The State interferes with the mother’s autonomy, bodily integrity, parental rights, …

Mitigating The Employer’S Exposure To Third Party Claims Of A Hostile Work Environment, John A. Pearce Ii, Ilya A. Lipin

UC Law SF Journal on Gender and Justice

We are only beginning to understand the impact of sexual harassment in the workplace on third parties. With few precedent cases, potential third party plaintiffs face the extremely difficult task of providing evidence of quid pro quo or hostile work environment sexual harassment when substantiating their claims as victims of widespread sexual favoritism, unreasonable interference in their workplace, or an intimidating, hostile, or offensive environment. However, as judicial decisions bring clarity to sexual harassment law, new theories provide promising options for potential plaintiffs, and courts increasingly recognize the viability of sexplus theory, the potential for third party sexual harassment claims …

Recovery And Preemption: The Collision Of The Medicare Secondary Payer Act And The Medical Device Amendments, George Horvath

Faculty Scholarship

Congress often uses its power to preempt state laws when a uniform nationwide regulatory environment is desirable. Unfortunately, preemption may have unintended, far-reaching effects. When Congress enacted the Medical Device Amendments of 1976 (“MDA”), it included an express preemption clause to ensure that only the Food and Drug Administration (“FDA”) could establish ex ante, premarket requirements for medical devices, thus allowing the Agency to establish a uniform regulatory floor. Just four years later, Congress enacted the Medicare Secondary Payer Act (“MSP”), part of a series of amendments to the Medicare program designed to improve the program’s finances. The MSP included …

Effective Client Selection In Transactional Clinics, Manoj Viswanathan

Faculty Scholarship

No abstract provided.

Reforming Law Schools: A Manifesto, Frank H. Wu

Faculty Scholarship

No abstract provided.

Is There A "Duty To Read"?, Charles L. Knapp

Faculty Scholarship

The notion that there is in general contract law a "duty to read" persists in the decisions of American courts. This Article explores the general question of what it may mean to say that there is a "duty to read," and concludes by suggesting what role (if any) that doctrine should play in our present-day law of contract. The Article begins by examining various ways in which the "duty to read" is commonly articulated, and compares it to other contract law concepts: the "duty to bargain in good faith" and the "duty to mitigate damages." The Article next considers a …

The Morality Of Law Practice, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Interracial Marriage And The Original Understanding Of The Privileges Or Immunities Clause, David R. Upham

UC Law Constitutional Quarterly

A perennial objection to the constitutional theory known as "originalism" is its alleged inconsistency with the result in Loving v. Virginia. Judicial and scholarly critics have often cited this inconsistency as a leading argument against what one court called the "rigid, originalist view of constitutional interpretation." According to several courts (prompted by the Supreme Court's opinion in United States v. Windsor), just as Loving properly disregarded the original understanding of the Fourteenth Amendment by invalidating laws prohibiting marriage between persons of different races, courts today should likewise set aside historical understandings to invalidate laws inhibiting marriage between persons of the …

Evaluating The Sociology Of First Amendment Silence, Mae Kuykendall

UC Law Constitutional Quarterly

The First Amendment associational freedom analysis of the 2000 culture wars case of Boy Scouts of America v. Dale adopts an understanding of conventions permitting (or mandating) silence and frames them as a basis for constitutional supervision of customs of silence and speech. The holding in Dale allowed the Scouts to exclude openly gay scoutmasters, despite a New Jersey statute barring such discrimination from a "public accommodation." The Court explained that organizational rights to exclude an openly gay Scout, whose presence speaks where silence is preferred, would enrich discourse by enabling organizations to claim a shield of silence with which …

Legal Education In A Modern World: Evolution At Work, Leo P. Martinez

Faculty Scholarship

No abstract provided.

Hobby Lobby: The Crafty Case That Threatens Women's Rights And Religious Freedom, Leslie C. Griffin

UC Law Constitutional Quarterly

The Religious Freedom Restoration Act ("RFRA") threatens religious freedom. Burwell v. Hobby Lobby, the Supreme Court's recent decision exempting for-profit corporations from the contraceptive mandate of the Affordable Care Act ("ACA"), proves this counterintuitive point.

This Article identifies Hobby Lobby as part of an alarming twenty-fiveyear trend to impose religious beliefs through force of law. This imposition was undertaken in the name of religious freedom, and was defended by Republicans, Democrats, professors, and politicians, however in practice it has restricted civil rights. Women's rights were limited in Hobby Lobby, where the Court didn't even factor women's equality and reproductive liberty …

Is Hobby Lobby Really A Brave New World - Litigation Truths About Religious Exercise By For-Profit Organizations, Eric Rassbach

UC Law Constitutional Quarterly

The Supreme Court in Burwell v. Hobby Lobby Stores held that the Religious Freedom Restoration Act applied to for-profit corporations and that the Affordable Care Act's requirement that group health care plans provide FDA-approved contraceptives created a substantial burden on Hobby Lobby Stores, Inc. Although controversial, this Article explains why the following outcry and dismay after the decision by media and scholars alike is unjustified. Hobby Lobby is merely a substantial burden case in a long line of substantial burden cases. The escalated level of attention to Hobby Lobby is not doctrinal, which is supported by the fact that it …

Monitoring Youth: The Collision Of Rights And Rehabilitation, Kate Weisburd

Faculty Scholarship

A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime. In its place, “electronic monitoring” has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as “jail-togo”: a cost-efficient alternative to incarceration that allows youth to be home while furthering rehabilitative and deterrent goals. But despite electronic monitoring’s intuitive appeal, virtually no empirical evidence suggests its effectiveness. Instead, given the realities of adolescent development, electronic monitoring may lead to more harm than good. This Article is the first to examine the …

The Reasonable Use Doctrine In California Water Law And Policy, Brian E. Gray

Faculty Scholarship

The cardinal principle of California water law is that all water rights, and all uses of water, must be reasonable. This seemingly simple and innocuous sentence masks a world of meaning and complexity, however, because the requirement of reasonable use embraces at least four interrelated concepts. The determination of reasonable water use is utilitarian: the law seeks to encourage relatively efficient, economically and socially beneficial uses of the state’s water resources. It is situational: the evaluation of individual reasonable use concerns not only the water right holder’s own uses but also other competing demands (both consumptive and ecological) on the …

A Sip Of Cool Water: Pregnancy Accommodation After The Ada Amendments Act, Joan C. Williams

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Restatement Of The Law Of Liability Insurance And The Duty To Settle, Leo P. Martinez

Faculty Scholarship

No abstract provided.

Is The Bay Delta Conservation Plan Adequately Funded?, Vincent Vu

UC Law Environmental Journal

No abstract provided.

"Was The Deal Worth It?": The Dilemma Of States With Ineffective Economic Incentives Programs, Randle B. Pollard

UC Law Business Journal

Federal subsidies to state and local governments have been substantially reduced due to public opinion prioritizing the reduction of the federal deficit, the recent "fiscal cliff" legislation, and the federal budget "sequester cuts." In addition, in many states, revenue collection from individual and corporate income tax is below prerecession levels. To address the reduction in federal funding and reduced revenue collections, state and local governments will increasingly rely on economic incentive programs to grow their economies through increased job creation and private capital investment within their jurisdictions. These economic incentive programs are no longer comprised of simple tax reductions for …

Corporate Governance In Japanese Law: Recent Trends And Issues, Hideki Kanda

UC Law Business Journal

This article discusses recent trends and issues concerning corporate governance in Japanese law. The purpose of this article is to offer brief overviews on selected topics, including empirical studies, recent scandals, board structure, rule making by the stock exchange, disclosure rules under Japanese securities regulation, and the forthcoming reform of Japanese corporate law.