Law Commons^™

A Call For Integrity, Ray Forrester

UC Law Constitutional Quarterly

No abstract provided.

Redefining The Captive Audience Doctrine, Marcy Strauss

UC Law Constitutional Quarterly

No abstract provided.

Freedom Of Speech In Public Schools: Using Communication Analysis To Eliminate The Role Of Educational Ideology, Gordon Danning

UC Law Constitutional Quarterly

No abstract provided.

Vicinage, Venue, And Community Cross-Section: Obstacles To A State Defendant's Right To A Trial By A Representative Jury, Lisa E. Alexander

UC Law Constitutional Quarterly

No abstract provided.

The Genius Of Section 16: Regulating The Management Of Publicly Held Companies, Steve Thel

UC Law Journal

Section 16 of the Securities Exchange Act is conventionally viewed as a measure for preventing corporate insiders from trading stock on the basis of nonpublic information. This Article argues that section 16 should instead be understood as a measure to prevent corporate managers from manipulating corporate affairs for their own ends, and more generally as a measure for promoting the efficient operation of publicly held corporations. Based on the conventional conception of section 16, many commentators have argued that the provision is an extremely crude and needlessly arbitrary insider trading statute. Through an examination of the incentive system section 16 …

Pursuing Native American Rights In International Law Venues: A Jus Cogens Strategy After Lyng V. Northwest Indian Cemetery Protective Association, Christopher P. Cline

UC Law Journal

The breathtaking advances in personal freedom for the people of Eastern Europe provide a sad counterpoint to the restrictions of such freedom sanctionedzn this country by the recent Supreme Court decision in Lyng v. Northwest Indian Cemetery Protective Association. In Lyng, the Court held that the building of a logging road through land held sacred to three native California tribes did not violate their first amendment right to practice their religion, even though the government- approved road would destroy their ability to worship. In response to Lyng, members of the tribes filed a complaint before the Organization of American States …

To Air Or Not To Err: The Threat Of Conditioned Federal Funds For Indecent Programming On Public Broadcasting, Rocio De Lourdes Cordoba

UC Law Journal

Recent legislative actions by the federal government demonstrate a growing intolerance toward controversial material contained in publicly-funded art and broadcast over the public airwaves. While a congressional bill aimed at restricting grants by the National Endowment for the Arts (NEA) for offensive works has received a great deal of public attention, a simultaneous campaign to eliminate indecency in broadcasting is silently underway. The passage of a 24-hour ban on broadcast indecency by Congress and active enforcement of indecency regulations by the Federal Communications Commission (FCC) currently render radio and television stations vulnerable to sanctions for airing indecent programming.

This Note …

An Aging Population: A Challenge To The Law, Lawrence A. Frolik, Alison P. Barnes

UC Law Journal

America is growing older. Both as a percentage of the population and in absolute numbers, every year more Americans are age sixty-five or older. Although generalizations about the elderly can be woefully inaccurate, and although chronological age is a very imprecise means of categorizing individuals with common characteristics, society nevertheless finds it useful to group the elderly together. Still, references to the elderly should not obscure the great differences among the individuals within the larger group. Yet the elderly, to varying degrees, share a decline in physical capacities and, to a lesser extent, a decline in mental capacity. When combined …

Options For Long-Term Care Financing: A Look To The Future, Marshall B. Kapp

UC Law Journal

The current long-term care financing patchwork in the United States contains many philosophical and operational deficiencies. Devising a better way to finance both institutional and community-based long-term care services for older persons is a pressing public policy concern. A number of serious proposals propounded in the past few years suggest ways to use public and private resources more rationally and effectively to address the long-term care financing problem. In this Article, Professor Kapp critically analyzes some of the more salient of these proposals in terms of the historical, demographic, economic, political, and legal contexts within which they have been formulated …

Time For A New Law On Health Care Advance Directives, George J. Alexander

UC Law Journal

Personal autonomy and the ability to direct one's health care treatment are important considerations for this nation's elderly population. In this Article, Professor Alexander reviews the history of health care directives in the United States. In particular, he considers the present state of natural death act directives to physicians, durable powers for health care, and the state of law in their absence, pointing out a number of problems presented by each type of health care directive. Professor Alexander places special emphasis on the states' regulation of decisions about removal of life support for elderly patients. He then proposes a new …

Sirens' Lure Of Invented Consent: A Critique Of Autonomy-Based Surrogate Decisionmaking For Legally-Incapacitated Older Persons, James Bopp Jr., Daniel Avila

UC Law Journal

Courts and other surrogate decisionmakers sometimes justify the decision to withhold life-sustaining treatment and care from a legally incapacitated older person as an exercise of that person's autonomy. Autonomy may be invoked even when the older person never issues an informed consent at the time a decision needs to be made. A consent to die may be invented by the surrogate on the older person's behalf through the creation of a "hologram" persona and a "dispositional" directive. The surrogate then asserts that the older person, not the surrogate, is the "autonomous" decisionmaker.

In this Article, Mr. Bopp and Mr. Avila …

Coming To Terms With Death: The Cruzan Case, Susan R. Martyn, Henry J. Bourguignon

UC Law Journal

The United States Supreme Court's landmark decision in Cruzan v. Director, Missouri Department of Health refused to recognize a constitutional right for Nancy Cruzan, a permanently comatose woman, to have her family decide whether life-sustaining medical treatment should be terminated. Eight members of the Court, however, acknowledged that a competent patient could have ordered the termination of life support.

After reviewing the Supreme Court's decision, Professors Martyn and Bourguignon present what they find to be a critical error in the Court's Cruzan analysis. Earlier state court decisions required procedural protections in surrogate decisionmaking cases but did not impose the state's …

Elder Abuse And The States' Adult Protective Services Response: Time For A Change In California, Audrey S. Garfield

UC Law Journal

Most Americans would be shocked to learn that an estimated five percent, or 1.5 million, elderly Americans regularly are victims of abuse. In California there were 12,000 reports of abuse during 1986-1987, a forty-five percent increase in reports from the previous year. With the rapid growth of the elderly population and of the numbers of abused elders nationwide and particularly in California, elder abuse, as well as other problems peculiar to this population, demand and deserve greater attention and resources.

This note explores the scope of the elder abuse problem and reviews states' reponses to the problem in domestic and …

Proposals For Limiting Foreign Investment Risk Under The Exon-Florio Amendment, Cecelia M. Waldeck

UC Law Journal

Since the passage of the Exon-Florio Amendment in 1988, foreign investors face the new risk that their acquisition of a controlling interest in a business located in the United States may be blocked or subject to divestiture on national security grounds. Under the proposed regulations implementing the Exon-Florio Amendment, the President, .acting through the Committee on Foreign Investment in the United States, retains broad discretion in determining whether foreign ownership of a particular business threatens U.S. national security.

This Note argues that the undefined national security standards found in the Exon-Florio Amendment and the proposed regulations to implement it create …

Racial Discrimination In Business Transactions, Robert E. Suggs

UC Law Journal

Professor Suggs argues that set-asides for minority business enterprises are the only practical remedy for business discrimination and therefore need more flexible treatment by the judiciary. In City of Richmond v. J.A. Croson Co., the Supreme Court set up strict standards for upholding set-asides, assuming that the problem of discrimination could be addressed adequately by laws prohibiting racial discrimination in business transactions. The author challenges this assumption. He considers the record of cases asserting claims of business discrimination and concludes that these cases fail, regardless of merit, because they face insurmountable practical problems of proof. After exploring whether a legislative …

Constitutional Limits On Using Civil Remedies To Achieve Criminal Law Objectives: Understanding And Transcending The Criminal-Civil Law Distinction, Mary M. Cheh

UC Law Journal

Recent years have seen a rapidly accelerating tendency for the government to punish antisocial behavior with civil remedies-such as injunctions, forfeiture, restitution, and civil fines-in addition to, or in lieu of, traditional criminal penalties. Two prominent examples are the widespread use of forfeiture in drug cases and the use of divestiture and treble damage judgments in civil RICO actions. A hallmark of Anglo- American jurisprudence for centuries, the basic division between civil and criminal matters appears to be collapsing. The distinction remains important, however, because, in addition to being a means for punishing specific individuals, criminal proceedings are official ceremonies …

Prohibiting Marital Status Discrimination: A Proposal For The Protection Of Unmarried Couples, John C. Beattie

UC Law Journal

In the late 1970s, state legislatures began to amend their antidiscrimination laws to include a prohibition against marital status discrimination in housing, employment, public accommodations, and credit transactions. Since then, state courts have developed two opposing interpretations of the scope of protection provided by these laws.

This Note examines how prohibitions against marital status discrimination may be used to protect unmarried couples seeking benefits available to married couples. First, the Note surveys the case law on marital status discrimination and explains how the opposing interpretations presently are applied to housing and employment policies. The author then argues that the law …

Constitutional Turf Wars: Competing For The Consent Of The Governed, Donald E. Lively

UC Law Journal

The prevailing image of an ideal judiciary is one insulated from the politics of the day, and judge-made law is seen as fundamentally antidemocratic. It is widely recognized, however, that the Supreme Court is influenced by politics. Professor Lively accepts this influence, arguing that politics impact the judiciary in several necessary and positive ways and concluding that in many instances judge-made law furthers rather than undermines the democratic process. Professor Lively sees institutional competition, particularly between the legislative and judicial branches of the government, as an important aspect of our system of checks and balances. He argues that a truly …

Bankruptcy And The Administrative State, Robert Kenneth Rasmussen

UC Law Journal

The tension between the public and private law regimes is particularly problematic in the bankruptcy context. Although generally viewed as a private regime, bankruptcy law does not excuse a debtor from compliance with the dictates of the administrative state, and courts frequently are called upon to reconcile the competing claims of the bankruptcy process and various administrative entities. Preoccupied with the private debtor-creditor paradigm, theorists have failed to provide a normative analysis of the relationship between bankruptcy and the administrative regime.

In his Article, Professor Rasmussen integrates the administrative state into bankruptcy theory. Reflecting on the deficiencies of the dominant …

The Congressional Resurrection Of Supplemental Jurisdiction In The Post-Finley Era, Ellen S. Mouchawar

UC Law Journal

Pendent and ancillary jurisdiction are necessary judicial creations for the just and efficient adjudication of lawsuits in an increasingly complex and overburdened court system. In Finley v. United States, however, the United States Supreme Court threatened the viability of these doctrines by requiring explicit congressional authorization for the exercise of extrajurisdictional power. Realizing Finley's negative import, Congress alleviated the Supreme Court's threat within a year and a half of the decision. In enacting section 1367 of Title 28 of the United States Code, Congress supplied the federal courts with the express legislative authorization required by Finley. Expanding the federal courts' …

Do Your Clients' Confidences Go Out The Window When Your Employees Go Out The Door, Kelly A. Randall

UC Law Journal

Recent years have seen a remarkable increase in the employment of nonlawyer support staff in the legal profession. Lawyers frequently hire secretaries, legal assistants, law clerks, investigators, file clerks, office managers, and law students to increase the efficiency and cost-effectiveness of legal services. As these nonlawyers are given greater responsibility, the risk that their employment may create conflicts of interest increases. If a nonlawyer employee has obtained confidential client information during her employment and then goes to work for another law firm that represents interests adverse to the former firm's client, the potential for a serious conflict of interest arises. …

Mistake, Frustration, And The Windfall Principle Of Contract Remedies, Andrew Kull

UC Law Journal

The familiar contract doctrines of discharge for "mutual mistake" (as epitomized by a case like Sherwood v. Walker) and "frustration" (including "impossibility" and "impracticability") should be understood as variations of a single problem. Both doctrines provide discharge upon the occurrence of a disparity between anticipation and realization in the terms of contractual exchange, the risk of which has not been allocated by the parties. In this Article, Professor Kull offers a hypothesis about what courts actually do when confronted with such an unallocated disparity. Courts applying the traditional "windfall" rule of the common law will neither relieve the disadvantaged party, …

The Defendant Lies And The Plaintiff Loses: The Fallacy Of The Pretext-Plus Rule In Employment Discrimination Cases, Catherine J. Lanctot

UC Law Journal

The emergence of a more conservative federal judiciary in recent years has produced many changes in what was once considered settled doctrine in employment discrimination law. Although much of the public controversy has focused on "quotas" and affirmative action, a split has recently emerged in the courts of appeal over the less visible but equally significant issue of how much evidence a plaintiff needs in order to prevail in an employment discrimination case. This Article highlights a trend within some appellate courts to impose difficult, and perhaps unwarranted, burdens of proof on plaintiffs.

Specifically, Professor Lanctot demonstrates that some circuits …

Getting There: A Brief History Of The Politics Of Supreme Court Appointments, Calvin R. Massey

Faculty Scholarship

No abstract provided.

The Future Of Legal Ethics, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Mclennan I: Does The Government Have An Attitude Problem?, William T. Hutton

Faculty Scholarship

No abstract provided.

Gender Wars: Selfless Women In The Republic Of Choice, Joan C. Williams

Faculty Scholarship

No abstract provided.

Dissolving The Sameness/Difference Debate: A Post-Modern Path Beyond Essentialism In Feminist And Critical Race Theory, Joan C. Williams

Faculty Scholarship

No abstract provided.

Getting New Drugs To People With Aids: A Public Policy Response To Lansdale, Marsha N. Cohen

Faculty Scholarship

No abstract provided.

Foreward: Some Thoughts On International Environmental Law From The Perspective Of A Domestic Practitioner, Brian E. Gray

Faculty Scholarship

No abstract provided.