Law Commons^™

The New Steam: On Digitization, Decentralization, And Disruption, Deven R. Desai

UC Law Journal

Digitization is the new steam. Steam allowed us to leverage like never before and spawned a series of new offerings and new needs. The steam era started with many competitors and inventors and ended with only a few concentrated winners. The winners contributed vast amounts to society and spawned a need for new laws, from antitrust to product liability to intellectual property to securities, and more. Just as steam disrupted old industries and fostered new ones, digitization is providing the same changes today. Digitization opens the door to decentralized production, lower costs, and disruption of incumbents, but digitization does not …

An Insight Into The Apparel Industry’S Patent Troll Problem, Ashli Weiss

UC Law Science and Technology Journal

Patent trolls have increasingly targeted the end users of patent-encumbered technology rather than suing the companies that created the allegedly infringing products themselves. Apparel companies provide a useful example of the predicament faced by a variety of similarly situated, nontechnology-oriented companies targeted by troll litigation. As high-profile end users of a variety of commercial technologies, apparel companies have proven to be popular targets for troll litigation. This article examines the apparel industry’s patent troll problem through the lens of historical context, in order to describe how nontechnology companies expose themselves to liability by becoming dependent on third-party technology. It then …

The Conflict Between The Fda’S Pre-Launch Activities Importation Request Program And The Hatch-Waxman Act, Alex Cheng, Matthew Avery

UC Law Science and Technology Journal

In 2008, the Food and Drug Administration (FDA) implemented the Pre- Launch Activities Importation Request (PLAIR) program. The FDA exercises its enforcement discretion under the guise of the PLAIR program to permit drug manufacturers to import unapproved drugs into the United States so the manufacturers can expedite their commercial launches when they finally receive official FDA approval. But the ability to import unapproved finished drug products into the United States ahead of anticipated FDA approval conflicts with certain provisions of the Hatch-Waxman Act that permit brand-name companies to use permanent injunctions to prevent the importation of generic equivalents of their …

Mental Health Parity: The Patient Protection And Affordable Care Act And The Parity Definition Implications, Suann Kessler

UC Law Science and Technology Journal

At least twenty-eight percent of American adults suffer from a mental or addictive disorder. However, even today, health insurance coverage for mental health services differs drastically from that of other medical services. Nonetheless, although it has yet to achieve parity with other medical services, health insurance coverage for mental health services has improved over time. Because the recent enactment of the Patient Protection and Affordable Care Act (“PPACA”) appears to have filled the parity gaps left by the Mental Health Parity and Addiction Equity Act of 2008, many claim that mental health parity has finally been achieved. While the PPACA …

Choice Of Procedural Law In International Commercial Arbitration: Providing "Proper Notice" To A Foreign Party To Ensure That The Arbitral Award Can Be Enforced, Tiffany Ng

UC Law Business Journal

In recent years, the Federal Circuit has made an effort to rein in excessive or unfounded patent damages awards. In Uniloc v. Microsoft, the Federal Circuit granted a motion for retrial on the issue of damages, rejecting the validity of plaintiff’s damages expert testimony. This note advocates a broad reading of Uniloc and encourages trial courts to take a greater role in providing juries with sound methodology for assessing damages. Specifically, this article encourages the use of court-appointed damages experts to restore predictability in the U.S. patent system.

Microlending: State Regulatory Reforms To Promote Economic And Employment Growth In California, Deanna Chea

UC Law Business Journal

Microlending has earned a great deal of acclaim for alleviating poverty and facilitating self-sufficiency among entrepreneur recipients of microloans, particularly in developing countries. The microlending structure has been repeatedly replicated and tailored to successfully meet each community’s unique needs. As one of the most socioeconomically, geographically, and culturally diverse states in the United States, California can reap the benefits of microlending with careful development of proper infrastructure. This note examines the history of microlending, provides and overview of the current economic state of California, and proposes a number of state legislative and regulatory reforms to create a sustainable and robust …

Bringing Dark Money Into The Light: 501(C)(4) Organizations, Gift Tax, And Disclosure, Tyler J. Kassner

UC Law Business Journal

Political speech funneled through 501(c)(4) organizations and funded by anonymous contributions is not just legal: It’s rampant. Could applying the gift tax to 501(c)(4) contributions resolve a legal grey area while curbing this anonymous political speech? Legally, expanding the gift tax would appear to be a legitimate option. It would be consistent with prior tax expansions and it is not abnormal for tax incentives to influence taxpayer behavior. The problem is not whether Congress could expand the tax, but whether it should. Applying the gift tax to 501(c)(4) contributions may very well curtail anonymous spending by c4s, but it would …

Rational Financial Meltdowns, Manuel A. Utset

UC Law Business Journal

This article focuses on the following question: how can a group of rational, and often very sophisticated, financial actors cause financial meltdowns, in the regular course of business? There is no doubt much we still need to learn about irrational financial meltdowns, but more likely than not, cognitive shortcomings only make matters worse: they exacerbate the type of behavior that can lead even super-rational actors to cause financial meltdowns.

Negotiating Bribery: Toward Increased Transparency, Consistency, And Fairness In Pretrial Bargaining Under The Foreign Corrupt Practices Act, Peter Reilly

UC Law Business Journal

From business to individual, almost anyone can be the subject to investigation for possible violations of the U.S. Foreign Corrupt Practices Act. If a party is indicted, the case may be resolved through an ADR vehicle currently being employed by the DOJ: The Deferred Prosecution Agreement (“DPA”) or the Non-Prosecution Agreement (“NPA”).

The use of such agreements is not guaranteed as an alternative to trial; rather they are awarded to defendants through negotiations with the DOJ. But here is the problem: This negotiation between prosecutor and accused can sometimes be unfair to the point where any “bargaining” taking place is …

What Counts As A Domestic Transaction Anymore: The Second Circuit And Other Lower Courts' Struggles In Interpreting The Supreme Court's Intent In Morrison V. National Australia Bank When Dealing With Derivative Securities Transactions, Jacob True

UC Law Business Journal

The U.S. Supreme Court recently created uncertainty in the over-the-counter derivative securities market with its decision in Morrison v. National Australia Bank Ltd. Courts used to determine if claims involving fraudulent actions effecting securities transaction could be made under U.S. securities law by assessing whether the fraud was conducted or the effects of the fraud was felt within the United States, but after Morrison that changed. Now, a securities transaction must be made on a “domestic exchange” or be a transaction occurring within the United States. The Supreme Court did not thoroughly define what constitutes a “transaction occurring within the …

The Uncertain Scope Of Revised Article 9'S Statutory Prohibition Of Exculpatory Breach Of Peace Clauses, Michael Korybut

UC Law Business Journal

What length may an agent for a secured lender with a lien on a debtor’s personal property go to in order to repossess the debtor property to satisfy the debt? Wombles Charters, a 1990 New York case decided under Article 9 of the Uniform Commercial Code, was the first in a trilogy to condone the use of exculpatory repossession clauses allowing actions that would otherwise amounted to a breach of the peace. In 2001, Article 9 received a makeover that many presumed would invalidate Wombles carve outs yet, there is virtually no case law on the subject. This has led …

Unbranding Confrontation As Only A Trial Right, Shaakirrah R. Sanders

UC Law Journal

This Article challenges the oft-cited but unpersuasive rule that the Sixth Amendment Confrontation Clause only applies at the trial stage of a “criminal prosecution.” I examine the most likely interpretation of the term “criminal prosecution” at the time of the Founding and conclude that the term would have included felony sentencing. I explore the Counsel Clause’s early rejection of the “trial-right-only” rule and the recent erosion of the “trial-right-only” rule with regard to the Jury Trial Clause in Alleyne v. United States. I advocate for eliminating the trial-right-only theory of the Confrontation Clause to allow cross-examination of testimonial statements that …

Note – “Please Don’T Stop The Music”: The Need For Fairness In Digital Copyright, Adam Vukovic

UC Law Journal

Each month, over 100 million Americans listen to and discover music through Internet radio stations. Section 114 of the Copyright Act requires Internet radio stations, as providers of digital radio transmissions, to pay performance royalties. Due to an outdated royalty determination method, these Internet radio stations regularly spend over half of their revenue to secure royalties for the songs streamed through their websites—far more than paid by digital radio stations. The Internet Radio Fairness Act sought to equalize the royalty rates paid by Internet radio services and their digital counterparts. Unfortunately, due to fierce lobbying, the bill has been abandoned …

Note – Arbitration At The Tipping Point: Challenging Claim-Suppressing Arbitration Clauses, James Parrinello

UC Law Journal

If you have entered into a contract for goods or services with a corporation recently, then chances are that an arbitration clause governs any potential legal claims you may have arising from that contractual relationship. In theory, arbitration is a cheap and efficient way to assert claims and allows a claimant to avoid the backlogged court system. For consumers, however, arbitration has morphed into a dispute resolution system that is no longer a fair alternative to the courts. Two recent Supreme Court decisions have validated corporations’ use of the inequitable, claim-suppressing mechanism known as a class action arbitration waiver. The …

The Failure Of Mitigation?, Robert J. Smith

UC Law Journal

A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders. For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma? The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime. This Article begins to fill the …

The “Too Big To Jail” Effect And The Impact On The Justice Department’S Corporate Charging Policy, Court E. Golumbic, Albert D. Lichy

UC Law Journal

In the wake of the 2008 financial crisis, the failure of the Department of Justice (“Justice Department” or “DOJ”) to bring criminal charges against any financial institutions prompted critics to question whether the DOJ maintained a policy that certain corporations are “too big to jail.” The criticism piqued after the DOJ announced that it had entered into a deferred prosecution agreement (“DPA”) with HSBC to resolve a massive money laundering and government sanctions investigation. This wave of criticism is the backdrop for what the Authors call the “too big to jail” effect—two related developments, each of which has the potential …

Note – “Between” A Rock And A Hard Place: Martin Marietta V. Vulcan And The Rise Of The Backdoor Standstill, Sasha S. Hahn

UC Law Journal

A recent trend has created an anomaly in interpreting confidentiality agreements in the context of merger negotiations. After the Canadian decision in Certicom v. Research in Motion and the Delaware Court of Chancery and Delaware Supreme Court’s decisions in Martin Marietta Materials, Inc. v. Vulcan Materials Co., standstill agreements may be read into standard confidentiality agreements without being separately negotiated or intended. These decisions have created the force of entire agreements out of the words “between” and “legally required.” This Note argues for a contextualist, rather than traditionalist, approach to interpreting these “backdoor” standstills to avoid unintended consequences for parties …

Completing The Energy Innovation Cycle: The View From The Public Utility Commission, Jonas J. Monast, Sarah K. Adair

UC Law Journal

Achieving widespread adoption of innovative electricity generation technologies involves a complex system of research, development, demonstration, and deployment, with each phase then informing future developments. Despite a number of non-regulatory programs at the federal level to support this process, the innovation premium—the increased cost and technology risk often associated with innovative generation technologies—creates hurdles in the state public utility commission (“PUC”) process. These state level regulatory hurdles have the potential to frustrate federal energy goals and prevent the learning process that is a critical component to technology innovation. This Article explores how and why innovative energy technologies face challenges in …

Neuro-Voir Dire And The Architecture Of Bias, Dov Fox

UC Law Journal

Courts and commentators routinely assume that “bias” on the jury encompasses any source of influence upon jurors that does not come directly from the evidence presented at trial. This sweeping conception of juror bias is flawed because it fails to distinguish the prejudices and affinities that infect jury decisionmaking from the experiences and perspectives that enrich it. This Article uses a thought experiment informed by the neuroscience of bias to illuminate the complexity of juror influences that go by the name of bias. I distinguish four distinct categories of juror influence: personal interests, community interests, case-specific beliefs, and case-general beliefs. …

The Seventeenth Amendment And Federalism In An Age Of National Political Parties, David Schleicher

UC Law Journal

Despite it being the constitutional amendment that most directly altered the structure of the federal government, little is known about how and why the Seventeenth Amendment was enacted. Existing scholarship on why the Constitution was amended to require direct elections for U.S. Senators, rather than having them appointed by state legislatures, has troubled accounting for two major puzzles. Why were state legislatures eager to give away the power to choose Senators? And why was there virtually no discussion of federalism during debates over removing a key constitutional protection for states governments? This Article offers a theory that can provide an …

Note – Drill Here Not There: Petroleum Leasing And Conservation In Alaska’S National Petroleum Reserve, Joel Aurora

UC Law Journal

This Note analyzes the Department of the Interior’s recent decision to close off several million acres of the National Petroleum Reserve-Alaska (“NPR-A” or “Reserve”) from oil and gas leasing while allowing petroleum development on discrete areas of the Reserve. After discussing the Reserve’s history, this Note examines the Alaska National Interest Land Conservation Act of 1980 and its relevance to the NPR-A, and analyzes the petroleum industry’s potential legal arguments against the Interior’s decision. This Note also argues that the Department of the Interior’s decision is in accordance with its administrative powers because the Secretary’s decision should not be considered …

Note – Say-On-Pay With Bite: Shareholder Derivative Suits On Executive Compensation, Louis Truong

UC Law Journal

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 mandated shareholder advisory voting for executive compensation in public corporations. This vote, known as “say-on-pay,” enables shareholders to provide input on the size and nature of executive compensation packages. The impetus behind mandating say-on-pay is the concern that corporate executive pay has grown increasingly excessive. To that end, say-on-pay has not been successful, as the first three years of voting have not produced a significant effect on executive pay. However, the voting results have suggested changes in other ways, indicating that shareholders can be influenced in the decisionmaking process …

Preying On The Graying: A Statutory Presumption To Prosecute Elder Financial Exploitation, Andrew Jay Mcclurg

UC Law Journal

With seventy-eight million baby boomers in or nearing retirement, elder financial exploitation has been labeled the “Crime of the 21st Century,” yet little has been done to address the problem. While states and the federal government have passed hundreds of laws protecting children based on the assumption they are vulnerable and unable to protect themselves, older at-risk adults have been comparatively ignored despite extensive research showing they too are vulnerable. A substantial roadblock to prosecuting elder financial predators is the inability to prove that the financial transfers at issue were the result of exploitation rather than legitimate transactions. Many victims …

Perspectives On Criminal Litigation Ethics: James Cole & Jeffrey Adachi, James Cole, Jeffrey Adachi

UC Law Journal

In August 2013, U.C. Hastings College of the Law was honored to host its first ever MCLE conference addressing “Criminal Litigation Ethics.” MCLE, of course, means “mandatory continuing legal education,” and I was pleased to organize a conference that addressed, in an academic setting, this vital topic of practical lawyering that appears in the headlines almost every day. Our unique objective was to provide two full days of hands-on training by nationally prominent criminal defense and prosecution lawyers, for litigating lawyers as well as law students, separated by setting and geography from the competition of daily practice. The conference was …

Incompetent But Deportable: The Case For A Right To Mental Competence In Removal Proceedings, Fatma E. Marouf

UC Law Journal

Important strides are currently being made toward increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found mentally incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding such as removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial …

Note – Rape-Related Pregnancies: The Need To Create Stronger Protections For The Victim-Mother And Child, Margot E. H. Stevens

UC Law Journal

About one in six women in the United States will be a victim of rape. For many of these women, the rape does not end there—this crime against their body will result in an unplanned pregnancy. In recent years, rape awareness has increased both in the government and among the public: a new federal definition of rape encompasses a broader spectrum of victims and pregnancy resulting from rape was splashed across national headlines. But this is not enough. Most states lack sufficient legal protections for a pregnant rape victim: criminal prosecutions and convictions for rape are rare, and many states …

Note – Alito’S Way: Application Of Justice Alito’S Concurring Opinion In United States V. Jones To Cell Phone Location Data, Ryan Birss

UC Law Journal

On January 23, 2012, the Supreme Court issued a landmark decision in United States v. Jones, ruling unanimously that the government’s installation of a GPS device on Antoine Jones’s vehicle and the use of that device to monitor the vehicle’s movements constituted a “search” and violated the Fourth Amendment. However, the majority opinion focused solely on the physical trespass of placing a device on a suspect’s car. Due to advancements in technology such as cell phone location data, physical intrusion is unnecessary for government officials to track an individual. The limitations of the opinion were immediately apparent in cases like …

Language Disenfranchisement In Juries: A Call For Constitutional Remediation, Jasmine B. Gonzales Rose

UC Law Journal

Approximately thirteen million U.S. citizens, mostly Latinos and other people of color, are denied the right to serve on juries due to English language requirements and despite the possibility (and centuries-old tradition) of juror language accommodation. This exclusion results in the underrepresentation of racial minorities on juries and has a detrimental impact on criminal defendants, the perceived legitimacy of the justice system, and citizen participation in democracy. Yet, it has been virtually ignored. This Article examines the constitutionality of juror language requirements, focusing primarily on equal protection and the fair cross section requirement of the Sixth Amendment. Finding the existing …

Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski

UC Law Journal

U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of comprehensively reevaluating the Common Rule, which designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious cognitive challenges—and imposes heightened protections of them. Given the vulnerabilities of those who confront end-of-life decisionmaking, should the regulatory standard be raised to more effectively protect the terminally ill from additional suffering and the loss of quality time with family and friends? Alternatively, …

Empirically Derived Compelling State Interests In Affirmative Action Jurisprudence, Meera E. Deo

UC Law Journal

Educational diversity has long been the only compelling state interest that satisfies strict scrutiny in affirmative action challenges absent prior institutional discrimination. However, as educational diversity may be losing favor, it is time to consider viable alternatives. This Article provides empirical support for the benefits of educational diversity and proposes three additional compelling state interests for courts to consider. Support for these compelling state interests comes directly from detailed quantitative and qualitative analyses of data collected from an empirical study of students at the University of Michigan Law School, relating to their preferences for diversity, perceptions of campus climate, and …