Law Commons^™

Vads, Vars, And Authorized Dealers - Do The Franchise Laws Apply To The Computer Industry, Kennedy A. Brooks

UC Law SF Communications and Entertainment Journal

VAD/VAR distribution programs may be "franchises" within the technical definitions in applicable federal and state laws. Computer products manufacturers should exercise care in the design of their dealer channels to avoid the impact of these laws. This Article reviews the basic features of these distribution channels, analyzes the components of the various definitions of a franchise, and discusses how these laws might affect the characteristics of a computer dealer channel.

The Future Of Software Copyright Protection: Arbitration V. Litigation, Alisa E. Anderson

UC Law SF Communications and Entertainment Journal

The legal profession and computer industry have expressed dissatisfaction with the existing copyright protection provided computer software and its traditional means of enforcement by litigation. These criticisms are exemplified in the protracted NEC Corp. v. Intel Corp. litigation. After examination of the current copyright laws and the recent NEC/Intel decision, the author analyzes the IBM/Fujitsu settlement, which created a new hybrid form of commercial arbitration. By relinquishing extensive control over their businesses to the arbitrators, IBM and Fujitsu established a sophisticated mechanism to resolve future conflicts and forestall future litigation. The author concludes that this hybrid method of arbitration is …

Bowen V. Kendrick: Retreat From Prophylaxis In Church-State Relationships, Alexandra Petrich

UC Law Constitutional Quarterly

No abstract provided.

Kadrmas V. Dickinson Public Schools: A Search For A Constistent Equal Protection Standard In Education, Michele Benson

UC Law Constitutional Quarterly

No abstract provided.

The Administrative Search From Dewey To Burger: Dismantling The Fourth Amendment, Lynn S. Searle

UC Law Constitutional Quarterly

No abstract provided.

Lyng V. Northwest Indian Cemetery Protective Association: Government Property Rights And The Free Exercise Clause, S. Alan Ray

UC Law Constitutional Quarterly

No abstract provided.

The Senator And The Constitution: An Interview With Orrin G. Hatch, Ronald K. L. Collins, David M. Skover

UC Law Constitutional Quarterly

No abstract provided.

The Jurisprudence Of Prevention: The Right Of Societal Self-Defense Against Dangerous Individuals, Edward P. Richards

UC Law Constitutional Quarterly

No abstract provided.

New York State Club Association V. City Of New York: Ending Gender-Based Discrimination In Private Clubs--Are Associational Rights Still Protected, Anthony L. Leto

UC Law Constitutional Quarterly

No abstract provided.

Digital Sampling: The Copyright Considerations Of A New Technological Use Of Musical Performance, Jeffrey S. Newton

UC Law SF Communications and Entertainment Journal

The author explores the controversial topic of digital sampling, a process that allows one musician to use another musician's performance without knowledge or consent. He explores the acquisition and use of samples and argues that a musician's "sound" is a copyrightable work, satisfying both constitutional and statutory requirements. The author further examines the interplay between sample acquisition and the Copyright Act's "fixation" requirement and the question of whether digitized tone colors are uncopyrightable upon utilitarian grounds. The author concludes that a musician's "sound" is copyrightable as a derivative work, that the standard of "substantial similarity" can be used to prove …

The "Rule Of Reason" In Antitrust Law: Property Logic In Restraint Of Competition, Rudolph J. Peritz

UC Law Journal

Disputing the orthodox view that competition policy has always been the only legitimate normative basis for antitrust law, this Article re-examines early antitrust history and finds persistently strong commitments to common-law property rights. An analysis of legislative materials and Supreme Court opinions reveals a series of conflicts between two competing logics or paradigms-- one founded in competition policies and the other in property rights. The discovery of this fundamental and unstable tension ultimately leads this Article to conclude that both the passage of the Sherman Act and the adoption of a "rule of reason" standard were products of triumphant property …

Interpreting The Purposes Of Initiatives Proposition 65, Kara Christenson

UC Law Journal

In November 1986 California voters passed the Safe Drinking Water and Toxic Enforcement Act, an innovative law that promised to provide greater protection from, and information about, carcinogens and reproductive toxins. The law's origin as an initiative, however, poses special problems of interpretation that may determine whether these goals are accomplished. Despite the great number of initiative measures in California elections, state courts have provided little guidance concerning the construction of initiative statutes. This Note analyzes court decisions that have interpreted initiatives and develops a test to assist those charged with the responsibility of construing an initiative statute. The Note …

"User-Accountability" Provisions In The Anti-Drug Abuse Act Of 1988: Assaulting Civil Liberties In The War On Drugs, Christopher D. Sullivan

UC Law Journal

In October of 1988 Congress passed the Anti-drug Abuse Act of 1988. Among its provisions are two new "user accountability" measures designed to attack the demand side of the war on drugs. One measure will impose civil fines of up to $10,000 for casual drug users. The second measure will give judges the discretion to deny federal benefits, such as student loans, to people convicted of drug possession or trafficking. This Note argues that these measures were rushed through Congress out of an election year desire to look tough on drugs. This Note argues that the provision for civil fines …

Patents On People And The U.S. Constitution: Creating Slaves Or Enslaving Science, Kevin D. Debre

UC Law Constitutional Quarterly

No abstract provided.

The Nuremberg Principles: A Defense For Political Protesters, Frank Lawrence

UC Law Journal

In the past three decades, some political protesters have offered an affirmative defense based on the Nuremberg Principles. The Nuremberg Defense, as it has become known, provides that private citizens have a duty and a privilege under international law and state crime prevention statutes to prevent crimes against the peace, crimes against humanity, and war crimes. Federal and state courts traditionally have rejected the Nuremberg Defense. The Nuremberg Principles are a part of customary international law, however, and as such should be applied in domestic courts. In addition, the justifications offered by courts for rejecting the Nuremberg Defense wither under …

Towards A Bill Of Rights For A Democratic South Africa, Albie Sachs

UC Law SF International Law Review

Instead of a bill of rights for post-apartheid South Africa being a means of protecting group privileges under the guise of protecting group rights, it should be an instrument for enlarging the freedom of the oppressed majority, recognizing the cultural diversity of the country, and guaranteeing equal individual rights for all, irrespective of race, color or creed.

Human Rights In Africa: A Cultural, Ideological, And Legal Examination, Ziyad Motala

UC Law SF International Law Review

This Article considers the dominant liberal interpretation of human rights and examines its relevance to African society in terms of its cultural and ideological origins. An argument is made that traditional African society had a conception of human rights which respected important human rights values. However, the rights in traditional African society were not conceptualized in individual terms. This constitutes a fundamental point of departure from the liberal interpretation. Furthermore, human rights practices should be understood, and criticisms against African societies made, in terms of traditional African conceptions. Finally, the African Charter of Human and People's Rights is evaluated in …

When Nations Kill: The Liu Case And The Act Of State Doctrine In Wrongful Death Suits, Fletcher Alford

UC Law SF International Law Review

On October 15, 1984, Henry Liu-a native of Taiwan and an outspoken critic of that government-was murdered outside his home in San Francisco, California. Evidence indicated that certain Taiwanese government officials may have assisted in the murder of Liu. However, a Taiwanese tribunal, investigating the government's role in the murder, determined that the Taiwan government took no part in the plot. Liu's widow subsequently brought suit in the Federal District Court for the Northern District of California, seeking to hold the Taiwanese government liable for the wrongful death of her husband. The judge dismissed her suit on "act of state" …

The Newest Member Of The Nuclear Club: Pakistan's Drive For A Nuclear Weapons Capability And United States Nuclear Nonproliferation Policy, Stephen H. Cassidy

UC Law SF International Law Review

One of the most consistent goals of United States foreign policy since the end of World War II has been to halt the spread among nations of the testing and manufacture of nuclear weapons. This Note provides a theoretical and historical overview of the history of nonproliferation efforts by the United States and the world community. The primary test case for United States policy in the 1980s, and the latest nation on the threshold of possessing nuclear weapons, is Pakistan. The Note focuses on United States attempts to convince Pakistan not to pursue the nuclear option.

Important debates between Congress …

A Proposal For The Development Of A System Of Indigenous Jurisprudence In The Federated States Of Micronesia, Brian Z. Tamanaha

UC Law SF International Law Review

Through a critical examination of the court decisions of the Federated States of Micronesia, this Article will establish that the Micronesians have failed in their efforts to develop a system of indigenous jurisprudence. To understand the reasons for this failure, this Article will survey similar attempts to merge custom into an improved legal system in decolonized areas around the world. Following the conclusion that the existing strategies applied to these situations cannot succeed, this Article will propose a new approach. The proposal rejects the focus on custom as a separate source of law, and instead emphasizes the role and nature …

Palestine And Humanitarian Law: Israeli Practice In The West Bank And Gaza, Carol Bisharat

UC Law SF International Law Review

With the purpose of providing a context for the eighteen month long Palestinian uprising, this Article traces the significant events in the history of the Israeli-Palestinian conflict emphasising the intolerable conditions imposed by twenty-two years of military rule. In the framework of international law, this Article examines first the application of the Fourth Geneva Convention, and secondly Israel's institutionalized violation of the Convention's governing standards as they apply to Palestinians in the occupied territories. The Palestinian right to self determination will be analyzed as it relates to the application of the Fourth Geneva Convention. Finally, Israeli laws and practices will …

Shifting Sands--A Comparison Of English And American Coastal Zone Management Programs, Roberta Lee Jones

UC Law SF International Law Review

The United States and England have each instituted government programs designed to protect coastal resources, but the two programs differ in scope and substance. The United States enacted federal legislation that helped individual coastal states establish and fund coastal programs. By contrast, the Parliament has enacted few meaningful coastal zone management programs and has instead relied on participation from private conservation organizations and local governments to manage and protect coastal resources. This Note compares the coastal zone management programs of England and the United States and proposes improvements for each program.

The Third World Debt Crisis, Peider Konz

UC Law SF International Law Review

The external debt burden has grown to the point that many sovereign borrowers are technically insolvent. This debt/development crisis cannot be resolved by a confrontation of abstract legal principles, which would serve neither the interests of the lenders, nor those of the borrowers. In fact, the causes are both endogenous (unrealistic economic and investment policies, over-borrowing) and exogenous (incautious lending in the days of easy money, subsequent rise of interest rates and restrictive trade policies in the North). To this comes the fact that many debtor countries have not been able to properly manage their debt in harmony with macroeconomic …

A Comparative Analysis Of Debt Equity Swap Programs In Five Major Debtor Countries, Derek Asiedu-Akrofi

UC Law SF International Law Review

Since the onset of the debt crisis, developing countries have resorted to several debt reduction and debt management techniques in order to sustain their debt servicing. One of the most popular of such techniques is debt-equity swaps. Its popularity is illustrated by the fact that several countries have either implemented formal debt-equity swap programs or are contemplating doing so. Despite the popularity of this technique, it is important to note that the features of each program are designed to suit the needs of each debtor country. Accordingly, the modalities for converting foreign debt to equity vary from country to country. …

Tax Implications Of Debt-For-Equity Swaps, Stuart M. Berkson, Bruce A. Cohen

UC Law SF International Law Review

This Article examines the United States income tax implications of debt-for-equity swaps. It focuses on Revenue Ruling 87-124 and describes its application to debt conversions. The Article also considers alternatives available to United States taxpayers in dealing with the potentially adverse consequences of Revenue Ruling 87-124, including arguments which could be raised during the course of an audit or a legal challenge. The Article concludes with a possible manner in which the debt-for-equity swap can be restructured to avoid Revenue Ruling 87- 124.

External Influences On Third World Debt, Neva Seidman Makgetla

UC Law SF International Law Review

At over one billion dollars in the late 1980s, Third World debt precipitated a variety of crises for the actors affected. On the one hand, it jeopardized the profitability of leading transnational banks. On the other, it involved a massive outflow of capital from the Third World, which endured a fall in both consumption and investment. The transnational banks and their home governments responded by demanding that the Third World impose austerity programs, which aimed to reduce consumption in order to enhance investment and maintain debt-service payments. To that end, Western creditors demanded the adoption of free-market policies. The logic …

The Legal Problems Of Indigenization In Nigeria: A Lesson For Developing Countries, Ifeanyi Achebe

UC Law SF International Law Review

In this Article, the author explores, without singling out Nigeria, the various consequences of inattention to uniform enforcement of the Nigerian Enterprises Promotions Decree promulgated in January 1977 (NEPD 1977) to facilitate and enhance economic development. The author notes that economic planners in developing countries have begun to recognize the importance and implications of the legal aspects of indigenization.

In the Nigerian situation, failure to enforce the indigenization decree and related laws encouraged religious discrimination, nepotism, and corruption in high places. It also encouraged fronting, the top enemy of economic progress. If Nigeria is to survive, President Ibrahim Babangida must, …

Intercompany Pricing Of Intangibles Under Section 482: A Comparison With Japanese Tax Policy, Christine Tomomatsu

UC Law SF International Law Review

Tax policy influences the ability of United States businesses to compete internationally. The 1986 Tax Reform Act amended section 482 of the Internal Revenue Code, imposing on United States corporations a new standard for pricing intercompany transfers of intangibles. This new standard deviates from the traditional arm's length standard. It is strict and unpredictable, creating taxpayer uncertainty and discouraging corporations from investing abroad. In contrast to the United States, Japan's tax policy attempts to alleviate uncertainty and double taxation. This Note compares Japanese and United States tax policies to demonstrate the detrimental impact the amendment to section 482 will have …

Technological Poetry: The Interface Between Copyrights And Patents For Software, Willis E. Higgins

UC Law SF Communications and Entertainment Journal

For historical reasons, there is an overlap between patent coverage for software as a technology and copyright coverage for software as a literary work. Each of these forms of protection for software has a proper role and should be allowed to coexist. Through common law evolution in case law and patent grants by the U.S. Patent and Trademark Office, patents have become the way to protect new and nonobvious functional concepts of software. Therefore, courts may be less willing to expand the scope of protected expression of copyrights to protect the functional aspects of software.

Carrying Copyright Too Far: The Inadequacy Of The Current System Of Protection For Computer Programs, Virginia R. Lyons

UC Law SF Communications and Entertainment Journal

Currently available methods of legal protection are inappropriate for software. Because copyright law developed long before the advent of computer programs, it does not take into consideration the specialized needs of the new technology. This Note examines the way copyright law was manipulated to address early problems in software protection, and the problems which result when these rules are applied to recent, more complicated cases. The Note then proposes a new system of legal protection for computer programs.