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Articles 2011 - 2040 of 8918

Full-Text Articles in Law

Captive Markets, Leah A. Plunkett Dec 2013

Captive Markets, Leah A. Plunkett

UC Law Journal

Modern county jails have increasingly adopted policies to bill their inmates for some or all of the costs of their room and board. Statutes authorizing counties to implement these “pay-to-stay” programs are on the books in roughly seventy percent of states, yet the financial mechanism on which these programs typically rely is not well understood. Although the pay-to-stay obligation bears some resemblance to familiar citizen-state financial transactions—such as fines and penalties, restitution, taxes, and fees—it usually belongs to a distinct model that this Article calls the “government-imposed loan.” This Article provides an overview of the landscape of pay-to-stay programs and …

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The Antitrust Implications Of Filing “Sham” Citizen Petitions With The Fda, Matthew Avery, William Newsom, Brian Hahn Dec 2013

The Antitrust Implications Of Filing “Sham” Citizen Petitions With The Fda, Matthew Avery, William Newsom, Brian Hahn

UC Law Journal

The First Amendment protects the right of all citizens to petition the government. The Food and Drug Administration (the “FDA”) has provided a means by which citizens or interested entities can voice their concerns to the FDA by filing a so-called “citizen petition.” However, some brand-name pharmaceutical companies have abused this process by filing baseless petitions with the FDA in an effort to delay generic competition. Such anticompetitive activity is generally protected by the Noerr- Pennington doctrine, which grants antitrust immunity to activity that involves petitioning the government for redress. However, the immunity does not apply to “sham” petitions, the …

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From Sex For Pleasure To Sex For Parenthood: How The Law Manufactures Mothers, Beth A. Burkstrand-Reid Dec 2013

From Sex For Pleasure To Sex For Parenthood: How The Law Manufactures Mothers, Beth A. Burkstrand-Reid

UC Law Journal

In Sargon Enterprises, Inc. v. University of Southern California, the California Supreme Court decided arguably the most important expert testimony decision that it has rendered in at least two decades. Prior to Sargon, California appeared steadfastly committed to the classic “general acceptance” test, which required judges to assess whether an expert’s theory or technique had gained general acceptance in the relevant fields. In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court announced a new empirical validation test. In the years since 1993, most state courts adopted some version of Daubert, but until Sargon the California …

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Note – The True Man & The Battered Woman: Prospects For Gender Neutral Narratives In Self-Defense Doctrines, Katelyn E. Keegan Dec 2013

Note – The True Man & The Battered Woman: Prospects For Gender Neutral Narratives In Self-Defense Doctrines, Katelyn E. Keegan

UC Law Journal

The recent rise of controversial Stand Your Ground laws has sparked discussions on self-defense law. Comparing the new Stand Your Ground laws with another self- defense doctrine—Battered Women’s Syndrome—it becomes apparent that the law solidifies gender stereotypes by assessing when an individual is justified in using deadly force against an aggressor. “True men” are empowered to use deadly force in public without a duty to retreat, while a battered woman often must provide expert testimony on her psychological condition to prove the reasonableness of her use of deadly force in light of her severe helplessness. At their extremes, both of …

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Note – Internalizing The External Costs Of Medical Device Preemption, David Chang Dec 2013

Note – Internalizing The External Costs Of Medical Device Preemption, David Chang

UC Law Journal

Medical device preemption is highly controversial because it provides medical device companies with immunity from state tort claims. Congress provided medical device companies with preemption in 1976 because it was concerned that medical device companies were being overwhelmed by the costs of litigation. Congress feared that this was destroying the incentive for medical device companies to develop risky but innovative life-saving devices.Today, the dark side of medical device preemption has come to light. Medical device preemption fails to require medical device companies to account for harms that their products create for society. Medical device companies have been able to externalize …

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Evaluating Flexibility In International Patent Law, Sarah R. Wasserman Rajec Dec 2013

Evaluating Flexibility In International Patent Law, Sarah R. Wasserman Rajec

UC Law Journal

Global patent law has raced toward harmonization over the past decades. Countries with vastly different industries, values, and levels of development now offer robust patent rights with similar contours through membership in the World Trade Organization and consequent adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). However, patent law is still far from harmonized among countries or static within countries. Jurisdictions tailor their patent laws to accommodate differences between industries, unforeseen inefficiencies, and diverse views of the costs and benefits associated with offering patent rights to stimulate innovation. Prior scholarly work consists of either doctrinal analyses …

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Symposium – From Bench To Society: Law And Ethics At The Frontier Of Genomic Technology, Jamie S. King Aug 2013

Symposium – From Bench To Society: Law And Ethics At The Frontier Of Genomic Technology, Jamie S. King

UC Law Journal

No abstract provided.

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Symposium – Seeking Genomic Knowledge: The Case For Clinical Restraint, Wylie Burke, Susan Brown Trinidad, Ellen Wright Clayton Aug 2013

Symposium – Seeking Genomic Knowledge: The Case For Clinical Restraint, Wylie Burke, Susan Brown Trinidad, Ellen Wright Clayton

UC Law Journal

Genome sequencing technology provides new and promising tests for clinical practice, including whole genome sequencing, which measures an individual’s complete DNA sequence, and whole exome sequencing, which measures the DNA for all genes coding for proteins. These technologies make it possible to test for multiple genes in a single test, which increases the efficiency of genetic testing. However, they can also produce large amounts of information that cannot be interpreted or is of limited clinical utility. This additional information could be distracting for patients and clinicians, and contribute to unnecessary healthcare costs. The potential for genomic sequencing to improve care …

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Symposium – What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno Aug 2013

Symposium – What Real-World Criminal Cases Tell Us About Genetics Evidence, Deborah W. Denno

UC Law Journal

Rapid advances in genetic and neuroscience research over the past few decades have fueled a focus on how such information is viewed and used by the criminal justice system. Researchers at the University of Utah recently conducted an unprecedented experimental study indicating that psychopathic criminal offenders are more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component …

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Symposium – Maternal Smoking During Pregnancy And Offspring Health Outcomes: The Role Of Epignetic Research In Informal Legal Policy And Practice, Taylor F. Smith, Matthew A. Maccani, Valerie S. Knopik Aug 2013

Symposium – Maternal Smoking During Pregnancy And Offspring Health Outcomes: The Role Of Epignetic Research In Informal Legal Policy And Practice, Taylor F. Smith, Matthew A. Maccani, Valerie S. Knopik

UC Law Journal

Scientific advances in epidemiology and epigenetics emphasize the importance of prenatal and intergenerational environmental influences and epigenetic regulation in altering vulnerability for later health outcomes. These findings may have wide-ranging legal implications; however, to avoid misapplication, a thorough understanding of the scientific literature and legal precedent is warranted. A growing body of literature suggests that negative health outcomes associated with prenatal smoke exposure may result, in part, from aberrant epigenetic regulation of gene expression. Such findings emphasize the need to reduce rates of prenatal cigarette smoke exposure in order to promote health for both current and future generations. This Article …

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Wading Into The Daubert Tide: Sargon Enterprises, Inc. V. University Of Southern California, David L. Faigman, Edward J. Imwinkelried Aug 2013

Wading Into The Daubert Tide: Sargon Enterprises, Inc. V. University Of Southern California, David L. Faigman, Edward J. Imwinkelried

UC Law Journal

In Sargon Enterprises, Inc. v. University of Southern California, the California Supreme Court decided arguably the most important expert testimony decision that it has rendered in at least two decades. Prior to Sargon, California appeared steadfastly committed to the classic “general acceptance” test, which required judges to assess whether an expert’s theory or technique had gained general acceptance in the relevant fields. In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court announced a new empirical validation test. In the years since 1993, most state courts adopted some version of Daubert, but until Sargon the California …

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Note – Competitive Regulation Of Mobile Software Systems: Promoting Innovation Through Reform Of Antitrust And Patent Laws, Josh Baskin Aug 2013

Note – Competitive Regulation Of Mobile Software Systems: Promoting Innovation Through Reform Of Antitrust And Patent Laws, Josh Baskin

UC Law Journal

This Note analyzes the current antitrust regulatory framework for high tech, iteratively evolving computer and software systems. This issue has significant implications for the current economy as many modern technology companies base their entire business model on such systems. This Note examines the problems concerning software patents through an analysis of two well-known mobile phone operating systems: Apple’s iOS and Google’s Android.This Note also examines the current regulatory framework that prevents large companies from taking anticompetitive actions to expand their power in fast-moving high tech markets at the expense of smaller competitors—specifically tying, predatory innovation, refusal to deal or license, …

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The Return Of Results In Genetic Testing: Who Owes What To Whom, When, And Why?, Stephanie A. Alessi Aug 2013

The Return Of Results In Genetic Testing: Who Owes What To Whom, When, And Why?, Stephanie A. Alessi

UC Law Journal

The field of genetic research has revolutionized modern medicine and will continue to do so in the years to come. For the people whose biological materials form the basis for this research, however, the research process may also lead to personal discoveries—namely, it may expose information about their health, genetic predispositions, and other gene-linked characteristics. Researchers who uncover this kind of personal genetic information are likewise confronted with the question of whether they should—or must—provide their subjects with feedback about their results.For subjects and researchers alike, the answer is unclear. Presently, there is little guidance as to these parties’ rights …

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Note – Toward Effective Access To Justice In Haiti: Eliminating The Medical Certificate Requirement In Rape Prosecution, Shannon D. Lankenau Aug 2013

Note – Toward Effective Access To Justice In Haiti: Eliminating The Medical Certificate Requirement In Rape Prosecution, Shannon D. Lankenau

UC Law Journal

In Haiti, the overwhelming majority of rapes go unpunished. To date, the Haitian government has failed to promulgate a working legal framework in which it can effectively prosecute crimes of sexual violence. Women, in particular, are disproportionately burdened by these inadequacies. This Note explores one of the most problematic aspects of the current legal system: the de facto requirement that a woman obtain a medical certificate to corroborate her claim of rape. Although not mandated by Haitian law, medical certificates are regarded as the foundation of any prosecution because deficient investigations often fail to produce any additional evidence for use …

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Lost In The Fog Of Miranda, George C. Thomas Iii Jun 2013

Lost In The Fog Of Miranda, George C. Thomas Iii

UC Law Journal

For over two centuries, Anglo-American law used a test of “voluntariness” to determine the admissibility of confessions. The twentieth century saw increasing skepticism that law can determine which conscious utterances are “voluntary” and which are not. Suspects who speak to police do so because they choose to speak rather than the alternative. If the alternative is torture, that feels involuntary. But if it is merely a lengthy interrogation, who can “prove” that the choice to answer is involuntary? Miranda v. Arizona was, in part, the Court’s response to this skepticism. If judges cannot tell which utterances are voluntary, why not …

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Supervisors In A World Of Flat Hierarchies, Catherine Fisk Jun 2013

Supervisors In A World Of Flat Hierarchies, Catherine Fisk

UC Law Journal

Under the National Labor Relations Act (“NLRA”), employees who are supervisors do not have the rights to join or assist labor unions or engage in other concerted activities for mutual aid and protection. The federal courts and the National Labor Relations Board (“NLRB”) have longstanding disagreements between and among them over how much authority over what types of working conditions is necessary to render one a supervisor. Recent cases reach conflicting results over issues such as whether nurses who can report co-workers for disciplinary infractions or can direct other employees to perform certain tasks are statutory supervisors who exercise independent …

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Winning The War On Drug Prices: Analyzing Reverse Payment Settlements Through The Lens Of Trinko, Alicia I. Hogges-Thomas Jun 2013

Winning The War On Drug Prices: Analyzing Reverse Payment Settlements Through The Lens Of Trinko, Alicia I. Hogges-Thomas

UC Law Journal

As drug prices continue to rise, many Americans are forced to choose between buying food or medicine. In 1984, Congress sought to address this issue by enacting the Hatch- Waxman Act. The purpose of the Act was to increase the availability of generic drugs by enabling the generic companies to challenge the brand companies’ patents in litigation. But this purpose is frustrated when the brand companies pay the generic companies millions of dollars to settle the litigation and delay their market entry. These settlements, which are usually referred to as “pay-for-delay” or “reverse payment” settlements, benefit the pharmaceutical companies at …

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The Computer Fraud And Abuse Act And Disloyal Employees: How Far Should The Statute Go To Protect Employers From Trade Secret Theft?, Audra A. Dial, John M. Moye Jun 2013

The Computer Fraud And Abuse Act And Disloyal Employees: How Far Should The Statute Go To Protect Employers From Trade Secret Theft?, Audra A. Dial, John M. Moye

UC Law Journal

This Article discusses the current split between the federal circuits over the scope of the Computer Fraud and Abuse Act (“CFAA”) and whether it extends to employees who steal an employer’s electronic trade secrets to which they were lawfully given access as employees. After discussing the legislative history of the CFAA and various appellate decisions interpreting its scope, the Authors argue that recent court decisions interpreting the statute—exemplified by the Fourth Circuit in WEC Carolina Energy Solutions, LLC v. Miller and the Ninth Circuit in United States v. Nosal—are unduly narrow in their scope.The Authors argue that the CFAA, by …

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Do Graphic Tobacco Warnings Violate The First Amendment?, Nathan Cortez Jun 2013

Do Graphic Tobacco Warnings Violate The First Amendment?, Nathan Cortez

UC Law Journal

When Congress passed the nation’s first comprehensive tobacco bill in 2009, it replaced the familiar Surgeon General’s warnings, last updated in 1984, with nine blunter warnings. The law also directed the U.S. Food and Drug Administration (“FDA”) to require color graphics to accompany the textual warnings. By law, the warnings would cover the top fifty percent of the front and back of tobacco packaging and the top twenty percent of print advertisements, bringing the United States closer to many peer countries that now require graphic warnings. Tobacco companies challenged the requirement on First Amendment grounds, arguing that the compelled disclosures …

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Note – The Case For Uniform Hot News Preemption, Joshua Korr Jun 2013

Note – The Case For Uniform Hot News Preemption, Joshua Korr

UC Law Journal

Hot news misappropriation is a ninety-year-old tort that provides a quasi-property right in factual information to fact-gathering organizations. When available, the right prevents free riders from copying factual information while it remains hot. The question is whether section 301 of the Copyright Act preempts hot news misappropriation claims in all circumstances. Although courts have had little trouble finding that most misappropriation claims are preempted, the issue is complicated in the hot news context by legislative history suggesting that hot news claims survive preemption. That suggestion conflicts with the actual language of the Copyright Act’s preemption provision, which seems to require …

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Note – Fair Use As Free Speech Fundamental: How Copyright Law Creates A Conflict Between International Intellectual Property And Human Rights Treaties, Jacob Zweig Jun 2013

Note – Fair Use As Free Speech Fundamental: How Copyright Law Creates A Conflict Between International Intellectual Property And Human Rights Treaties, Jacob Zweig

UC Law Journal

Copyright law grants individuals monopoly over a particular kernel of expression, whereas the right to freedom of expression theoretically grants others the right to use that same kernel of expression. In this sense, the right to freedom of expression conflicts with copyright law. This Note argues that a flexible, open-norm copyright exception like the U.S. fair use doctrine provides a free speech safety valve that is essential in resolving the conflict and is thus a necessary component of the right to freedom of expression protected by treaties such as the International Covenant on Civil and Political Rights and the European …

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Resistance Is Not Futile:Harnessing The Power Of Counter-Offensive Tactics In Legal Persuasion, Peter Reilly May 2013

Resistance Is Not Futile:Harnessing The Power Of Counter-Offensive Tactics In Legal Persuasion, Peter Reilly

UC Law Journal

A core competency for people working in law or business is the ability to influence and persuade: People need to become expert at getting others to agree, to go along, and to give in. The potential “targets” of one’s influence throughout a given workday are seemingly endless and include clients and customers, co-counsel, opposing counsel, supervisors, direct reports, contractors, subcontractors, consultants, secretaries, judges, juries, witnesses, police officers, court personnel, and others. Moreover, that influence is largely exerted through words spoken and behaviors exhibited within the context of a negotiation. And yet, leading academics have argued that the vast majority of …

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A Long View Of The Supreme Court’S Influence Over Supreme Court Appointments, Christine Kexel Chabot May 2013

A Long View Of The Supreme Court’S Influence Over Supreme Court Appointments, Christine Kexel Chabot

UC Law Journal

This Article offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended historical period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.Earlier empirical studies consider only limited numbers of recent nominees. They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows that the …

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Note – The Fate Of Bittorrent John Does: A Civil Procedure Analysis Of Copyright Litigation, Patience Ren May 2013

Note – The Fate Of Bittorrent John Does: A Civil Procedure Analysis Of Copyright Litigation, Patience Ren

UC Law Journal

Copyright owners can trace online violations to an infringer’s Internet protocol address but cannot identify her unless they obtain court approval to serve a subpoena on an Internet service provider. As the most popular peer-to-peer file-sharing protocol today, BitTorrent requires users to share files with each other in a conspiracy-like fashion. By arguing that this feature imparts a “same transaction” character to BitTorrent infringement activities, a copyright owner can seek to join multitudes of Internet protocol addresses as John Doe defendants in an application for early discovery. Courts are divided as to whether early discovery should be granted where tens, …

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Condemnation Without Basis: An Expressive Failure Of Corporate Prosecutions, Gregory M. Gilchrist May 2013

Condemnation Without Basis: An Expressive Failure Of Corporate Prosecutions, Gregory M. Gilchrist

UC Law Journal

This is the second of two Articles on the expressive aspects of corporate criminal liability. The first Article argued that to justify imposing criminal liability on corporations we must refer to the expressive function of criminal liability. This Article considers the expressive function of actual corporate prosecutions and identifies aspects of corporate prosecutions that generate expressive costs rather than benefits. These are the expressive failures of corporate prosecutions. This Article identifies a number of these failures and introduces a model of perceived legitimacy and the expressive function of punishment that explains how expressive failures harm the legal system. Mere respondeat …

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Uncommon Approaches To Commons Problems: Nested Governance And Climate Change, Blake Hudson, Jonathan Rosenbloom May 2013

Uncommon Approaches To Commons Problems: Nested Governance And Climate Change, Blake Hudson, Jonathan Rosenbloom

UC Law Journal

The national debate over marriage discrimination against gay and lesbian Americans is playing out in state legislatures, at the ballot, and in the federal courts under the conventional notion that liberal rhetoric, the liberal political philosophy indebted to John Rawls, and the unencumbered self at their cores are the bases for the most effective arguments for the gay rights movement. Pro-gay groups talk often about rights, liberty, and the freedom to choose whom to love. Even in court, gay rights groups repeat the Supreme Court’s statements about a fundamental right to make the choice to marry. But the conventional wisdom …

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Note – Thank You, Servicemember! But Your Process Is In Another Forum: The Misuse Of Civil Jurisprudence To Inform Ucmj Rights, Justin Biolo May 2013

Note – Thank You, Servicemember! But Your Process Is In Another Forum: The Misuse Of Civil Jurisprudence To Inform Ucmj Rights, Justin Biolo

UC Law Journal

Congress codified many of the disciplinary procedural rights for servicemembers in the Uniform Code of Military Justice (“UCMJ”). Several of these explicit, statutory protections were later developed as judicial doctrines for civilians, such as Miranda’s right against self-incrimination and Kastigar’s right to testimonial immunity. In response the military’s highest court, the U.S. Court of Appeals for the Armed Forces, adopted the U.S. Supreme Court’s jurisprudence to inform a servicemember’s statutory rights under the UCMJ. But in doing so, military justice did not recognize that civilian rights are typically only invoked in trials while military discipline is affected through a gamut …

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Through The Eyes Of Jurors: The Use Of Schemas In The Application Of “Plain Language” Jury Instructions, Sara Gordon Apr 2013

Through The Eyes Of Jurors: The Use Of Schemas In The Application Of “Plain Language” Jury Instructions, Sara Gordon

UC Law Journal

“Through the Eyes of Jurors” is the first law journal article to consider all of the major cognitive psychology studies that examine how “schemas,” or the preexisting notions jurors have about the law, shape jurors’ use of jury instructions, even when those jurors are given “plain-language” instructions. This Article examines the social science research on schema theory in order to advance our understanding of how schemas continue to influence jurors’ use of jury instructions, even when those jurors are given “plain language” instructions. A significant body of legal literature has examined jurors’ use and understanding of jury instructions, and many …

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Contract-Based Post-Sale Restrictions On Patented Products Following Quanta, Alfred C. Server Apr 2013

Contract-Based Post-Sale Restrictions On Patented Products Following Quanta, Alfred C. Server

UC Law Journal

Supreme Court decisions regarding the doctrine of patent exhaustion have drawn a bright line for determining when patent exhaustion occurs. If a sale of a patented product is authorized, exhaustion occurs. If a sale is not authorized, there is no exhaustion and patent remedies remain available to the patent holder to enforce a breach of a contractual restriction placed by the patent holder on the buyer of its patented product. But a lack of precision in the Supreme Court’s patent exhaustion jurisprudence has resulted in uncertainty regarding the scope and impact of patent exhaustion. Specifically, questions persist as to whether …

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Consenting Under Stress, Hila Keren Apr 2013

Consenting Under Stress, Hila Keren

UC Law Journal

This Article highlights a disturbing gap between what is currently known about stress across a range of disciplines and the way stress is treated at law. It does so by focusing on parties who seek relief from contractual obligations on the grounds that they consented under stress. The Article first exposes the leading legal view that stress is merely a subjective feeling and therefore merits no legal recognition. It then provides a pragmatic synthesis of the rich study of stress in order to counter that misguided legal presumption and to offer a better understanding of the physical, social, and psychological …

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