Law Commons^™

Intramilitary Tort Immunity: A Comparison Of The United States And Great Britain, Jennifer Beckett

UC Law SF International Law Review

Great Britain recently eliminated the military exception to the Crown Proceedings Act of 1947. The United States, by comparison, adheres to the Feres doctrine, the judicially created exception to the Federal Tort Claims Act. This note examines the rationales for prohibiting service members from suing under a nation's tort claims act, and the reasons why Parliament decided in 1987 to allow British military personnel to sue under the Crown Proceedings Act. The Note concludes with a discussion of why Congress should follow Britain's lead and abolish the Feres doctrine.

The Basel Convention: Control Of Transboundary Movements Of Hazardous Wastes And Their Disposal, Kathleen Howard

UC Law SF International Law Review

Serious accidents compromising the environment and human health in developing nations are the result of increased hazardous waste exports. Domestic environmental legislation has failed to control these unchecked exports. The controversial Basel Convention offers a workable solution to slow hazardous waste export and to minimize waste production. This Note analyzes the Basel Convention's provisions and the positions of those opposed to them. The Note then compares the Convention to existing legislation in the United States and proposes modification and adoption of the Convention as a solution to the increasingly dangerous problem of inadequate waste disposal and international hazardous waste exports.

The Emerging European Community: A Framework For Institutional And Legal Analysis, Martin E. Elling

UC Law SF International Law Review

The European Community is not just a common market but rather a nascent political union. Facile comparisons between the institutions of the EC and the United States are insufficient and miss the point that the EC is developing a hybrid institutional and legal framework. It is crucial that political, economic, and legal actors understand the subtleties of how the EC functions, its aspirations for 1992 and beyond, and the likely changes to be wrought by the decay of Soviet hegemony in Eastern Europe.

Report Of The Icj Mission Of Inquiry Into The Israeli Military Court System In The Occupied West Bank And Gaza, Jordan J. Paust, Gerhard Von Glahn, Gunter Woratsch

UC Law SF International Law Review

The International Commission of Jurists, concerned about the workings of the military justice system in the West Bank and Gaza, sent three distinguished international lawyers to undertake an investigative mission in June and July 1989. As a result of this mission, they prepared a fair and objective factual report. The Report focuses on concerns regarding continuing reports of mistreatment and torture of suspects during interrogation, the inability of defense attorneys to visit their clients, and inadequate charges. The Report also contains numerous recommendations on topics such as improving the treatment of arrested persons, sentencing on guilty pleas, and family visits.

California Lawyers For The Arts, Alma Robinson

UC Law SF Communications and Entertainment Journal

No abstract provided.

Emma Bovary, Nathan Marx And The Writer's Art, Vivian Deborah Wilson

UC Law SF Communications and Entertainment Journal

In this Essay, the author addresses censorship by examining public reaction to two literary works: Flaubert's Madame Bovary and Roth's Defender of the Faith. She presents the dangers of silencing writers to prevent readers from finding in these writings "confirmation for their own fully-developed intolerance, bigotry, hatred and violence."

Functionality Doctrine In Trade Dress And Copyright Infringement Actions: A Call For Clarification, Beth F. Dumas

UC Law SF Communications and Entertainment Journal

The design features of a useful article will not qualify for either copyright or trade dress protection if they are considered functional. The functionality doctrine is an elusive one; in the trade dress arena, courts have experienced considerable difficulty in setting forth functionality tests clearly. The author synthesizes several functionality standards from recent case law and discusses the merits of each. This Note suggests that in trade dress cases courts should distinguish between mechanical and non-mechanical products and apply different tests to each.

Welcome To The Nineties, Bindrim V. Mitchell: Now Drop Dead, Robert Asa Crook

UC Law SF Communications and Entertainment Journal

Ten years ago Bindrim v. Mitchell roared like a lion, extending an author's potential to defame through fiction. Today, it appears that the lion may be a mouse. Courts are generally applying a higher degree of scrutiny in an effort to curb the "chilling effect" Bindrim could potentially wreak upon the artistic community. Artists and agents, however, should be wary of certain types of fiction which have no standardized protection. This Note suggests a standard which could protect all authors from nuisance suits brought by readers who assert that the fictional work is "of and concerning" them.

Doctors Can Just Say No: The Constitutionality Of Consumer-Directed Advertising Of Prescription Drugs, Michelle D. Ehrlich

UC Law SF Communications and Entertainment Journal

Advertising prescription drugs directly to consumers is a recent phenomenon and has sparked much ethical debate on how best to protect the interest of consumer/patients, physicians, and manufacturers. This Note examines the current statutory and regulatory provisions governing prescription drug advertising and their application, and concentrates on whether consumer-directed prescription drug advertising is constitutionally protected speech.

When A Promise Is Not A Promise: The Legal Consequences For Journalists Who Break Promises Of Confidentiality To Sources, Kathryn M. Kase

UC Law SF Communications and Entertainment Journal

According to both a trial court and an appeals court in Minnesota, a newspaper breached a contract when it identified a source to whom its reporter promised confidentiality. While American journalists are increasingly identifying confidential sources, imposing contract law is an inadequate remedy because it does not consider journalistic factors such as the story's news value. This Note argues that American courts should adopt the British cause of action for breach of confidence, which balances the source's need for confidentiality against the public's need to know.

The University Of California Hate Speech Policy: A Good Heart In Ill-Fitting Garb, Jens B. Koepke

UC Law SF Communications and Entertainment Journal

A rising tide of racism and hate speech is rushing over American university and college campuses. Minority students are alienated and harmed by racist attacks inside and outside the classroom setting. The University of California has addressed the problem of hate speech by developing regulations barring students from using such speech on school grounds. This Note argues that the University of California policy sweeps too broadly and that its application of the "fighting words" doctrine is inappropriate in this context. The Note suggests an alternative policy recognizing the importance of protecting hate speech victims and legitimate speech.

My Life, My Story, Right - Fashioning Life Story Rights In The Motion Picture Industry, Michelle E. Lentzner

UC Law SF Communications and Entertainment Journal

In 1956, Twentieth Century-Fox contracted with Christine Costner Sizemore for rights to her life story. At the time, Sizemore was suffering from a multiple personality disorder, which the resulting movie The Three Faces of Eve dramatized. Sizemore has since recovered. In 1989, she tried to sell option rights for a movie based on her third biography. Twentieth Century-Fox sought an injunction, claiming it exclusively owned the movie rights to her life story. The author explores the parameters necessary for drafting life story contracts, as well as the recourse available to a subject whose life story is appropriated for a movie …

Judicial Discretion And The First Amendment: Extending The Holding Beyond The Facts Through Contiguous Decision-Making, Richard E. Labunski

UC Law SF Communications and Entertainment Journal

A revered principle of American law is that courts will extend the holding of a case only as far as the facts require. In first amendment cases, the application of this principle often means that freedom of speech and press issues remain unresolved for years while courts come to widely varying conclusions about how the first amendment is to be interpreted. This Article proposes that courts be allowed to extend the holding of certain cases beyond the facts through "contiguous decision-making." Such additional authority is necessary to preserve the special status of the first amendment and will not greatly enlarge …

Proposed Prior Art Legislation For Computer Program Patent Applications: Creating A Potential For Coexisting Patents, Reed R. Heimbecher

UC Law SF Communications and Entertainment Journal

Although both copyright and patent law can be used to protect computer programs, this Note suggests that sui generis protection should be established for software. The author provides background information, including a description of various computer related terms, a discussion of the patentability of algorithms, and a discussion of the United States Supreme Court's decision in Diamond v. Diehr. This Note then proposes that pending software patents, even if eventually granted, should not constitute prior art for computer program patents.

What Is Art - Toward A Legal Definition, Leonard D. Duboff

UC Law SF Communications and Entertainment Journal

A great number of unresolved issues arise in the relatively new field of art law. The author considers several areas of the law, including copyright, customs, state and federal moral and economic rights statutes, and state consignment statutes in order to develop a legal definition of "art." This Article concludes that this definition depends on who does the defining; however, common threads exist. Some sort of originality on the part of the work is required. Additionally, legislators faced with defining art are consistently concerned with the scope of the definition. The author believes a definition that attempts to include more …

Art Of The State: Congressional Censorship Of The National Endowment For The Arts, Stephen F. Rohde

UC Law SF Communications and Entertainment Journal

This Article explores the content restrictions imposed on the National Endowments for the Arts and Humanities. It recalls the ambitious goals set for the NEA and NEH in 1965. Next, it traces the 1989-1990 legislative battles to ban federal funding for "obscene" and "indecent" art. Finally, the author concludes that the congressionally-imposed content restrictions are unconstitutional in that they abridge the first amendment, enact a system of prior restraint, violate the prohibition on bills of attainder, and establish vague and uncertain standards imperiling protected speech.

Some Constitutional Implications Of Denying Nea Subsidies To Arts Projects Under The Yates Compromise, Karen Faaborg

UC Law SF Communications and Entertainment Journal

The 1989 funding legislation for the National Endowment for the Arts is constitutiQnally infirm for at least two reasons. First, it politicizes the grant-making process by inserting a government official as censor. Second, it allows subject matter discrimination to occur without the strict scrutiny safeguards designed to avoid illicit prior restraints and the chilling of first amendment rights. Passed as a form of compromise between two warring factions-the Jesse Helms set who would severely restrict NEA funding and the freedom-of-speech set who would impose no restrictions whatsoever-the so-called Yates compromise would nonetheless find a friendly audience at the Supreme Court …

Visual Arts And The Public: A Legislative Agenda For The 1990s, Thomas M. Goetzl

UC Law SF Communications and Entertainment Journal

The author reflects on the meaning both of the shocking prices currently being paid for many works of art and of some instances of the censorship of art. The author offers the possibility that both of these phenomena reveal a hostility to art and the artists who create it. The Essay then recommends a role that moral rights and resale royalty legislation can play to improve the public's sensitivity to the arts and artists.

Museum Collection Care Problems And California's Old Loan Legislation, Judith L. Teichman

UC Law SF Communications and Entertainment Journal

A number of museums have problems associated with objects which have been in their custody for many years. Sometimes it is unclear whether the objects were originally loans or gifts; in other cases, the lender has died or otherwise lost contact with the museum. This Essay describes what has led to these situations and the resulting dilemmas, including the difficulty of litigating claims to the objects. It describes the reasoning behind the factual support for various provisions in the California legislation governing loans to museums. The author concludes that the legislation will prevent a recurrence of the identified problems and …

Poetic Justice: Work Made For Hire Laws Invite State Regulation Of Parties To Copyright Contracts, Gregory T. Victoroff

UC Law SF Communications and Entertainment Journal

Little-known California laws may impose extensive statutory requirements and labor regulations on purchasers of copyrightable works using written "Work Made for Hire" contracts. These laws may coalesce with other state labor regulations, springing a costly trap on unwary users/buyers of coprightable works. Attorneys representing artist/employee clients can make artful use of the California "Work Made for Hire" laws to achieve for them a sort of "poetic justice."

The Defamation You Can't Refuse: Section 315'S Prohibition On Censoring Political Broadcasts, Martin Kassman

UC Law SF Communications and Entertainment Journal

Section 315 of the Communications Act prohibits broadcasters from censoring political candidates' commercials. What happens when a candidate runs an ad that tells lies about his opponent or someone else? What if a candidate uses obscene, indecent, or inflammatory language or images? The author reviews the cases that have come before the courts and the Federal Communications Commission. Although broadcasters have been held immune from liability for defamatory political broadcasts, that immunity is not explicit in the statute. It is unclear whether stations have the power to censor indecent or obscene political ads and whether they can be punished for …

Lights, Camera, Actionable Negligence: Transmission Of The Aids Virus During Adult Motion Picture Production, Francisco G. Torres

UC Law SF Communications and Entertainment Journal

Adult motion picture production is an activity in which the risk of HIV transmission is extremely high. Film producers' failure to employ safe sex practices and California legislation prohibiting AIDS testing by employers have combined to create an unsafe working environment for performers. This Note examines the potential liability of producers for transmission of HIV during the production of an adult motion picture. This Note then proposes that California Health and Safety Code section 199.21 be amended to allow adult motion picture producers to use AIDS test results to determine employability of performers.

The Law Of Ideas: New York And California Are More Than 3,000 Miles Apart, Peter Swarth

UC Law SF Communications and Entertainment Journal

The 1989 Los Angeles County Bar Association Entertainment Law Writing Competition First Prize Winner.

Over the years, New York and California courts have moved in opposite directions on the question of protection for the purveyor of ideas. While California courts have expanded the rights of idea sellers to almost equal those found under copyright law, New York courts virtually deny any rights to the "idea man." Recent decisions by the Second and the Ninth Circuit Courts of Appeals demonstrate just how far apart our two great centers of creativity have become.

A Kinder And Gentler Supreme Court, Arthur J. Goldberg

UC Law Constitutional Quarterly

No abstract provided.

Out Of Sight, Out Of Danger: Procedural Due Process And The Segregation Of Hiv-Positive Inmates, Lynn S. Branham

UC Law Constitutional Quarterly

No abstract provided.

The Role Of Special Interest Groups In The Supreme Court Nomination Of Robert Bork, William G. Myers Iii

UC Law Constitutional Quarterly

No abstract provided.

The Supreme Court And Affirmative Action: Whose Classification Is Suspect, Donald E. Lively

UC Law Constitutional Quarterly

No abstract provided.

The Privacy Expectation: A Comparison Of Federal And California Constitutional Standards For Drug Testing In Amateur Athletics, David R. Cochran

UC Law Constitutional Quarterly

No abstract provided.

Does The Fifth Amendment Takings Clause Mandate Relief For Victims Of Diplomatic Immunity Abuse, Juliana J. Keaton

UC Law Constitutional Quarterly

No abstract provided.

For The Want Of A Nail...The War Was Lost: Separation Of Powers And United States Counter-Terrorism Policy During The Reagan Years, Peter Richman

UC Law Constitutional Quarterly

No abstract provided.