Law Commons^™

You Don’T Have To Pay The Troll Toll: Antitrust Violations Of Patent Assertion Entities And The Noerr-Pennington Doctrine “Sham Litigation” Exception, Katheryn M. Wenger

UC Law Constitutional Quarterly

This Note discusses the implications of possible antitrust violations when Patent Assertion Entities (“PAEs”) enforce their vast patent portfolios against alleged infringers by forcing a license of the entire portfolio or threatening continuous and costly litigation. This Note analyzes this PAE conduct under antitrust laws, using Intellectual Ventures I, LLC v. Capital One Financial Corp. as an exemplar case study. Further, the Note explains that PAEs are not immune to antitrust counterclaims under the Noerr-Pennington doctrine because their anticompetitive conduct meets the standard for the “sham litigation” exception to the doctrine. Ultimately, this Note offers preventative solutions to this PAE …

Foreword, Kya Rose Coletta

UC Law Business Journal

No abstract provided.

The Ethics Of Governance, Justice Gordon Goodman

UC Law Business Journal

This Article discusses the need for a board of last resort to set financial values during periods of extreme economic stress, i.e., the “liquidity black hole” events. The purpose of this proposed board, the “Independent Treasury Board,” would be to address valuation uncertainty during bust periods immediately following major financial crises.

If an Independent Treasury Board existed prior to 2008, it could have helped rein in some valuations that were among the causes for the Great Recession. More importantly, it could have quickened recovery from the Great Recession during the period immediately following the financial crisis by shortening the period …

Masthead

UC Law Business Journal

No abstract provided.

Women And (In)Justice: The Effects Of Employer Implicit Bias And Judicial Discretion On Title Vii Plaintiffs, Kya Rose Coletta

UC Law Business Journal

Current disparate treatment jurisprudence requires a plaintiff to prove that her employer intentionally discriminated based on sex, ignoring the social cognitive view that emphasizes the role of unconscious, unintentional mental processes. Women are unable to reach the top- tiers of the legal profession, like partnership, due to employers’ deeply engrained biases that emerge during assignment distribution and performance evaluations. This Note challenges that dominant approach, arguing that disparate treatment liability should turn on proof of actuation rather than evidence of intentionality. This Note presents a prescriptive discussion of how employers can implement compliance measures to prevent implicit bias in decision-making …

Federal Right To Try Act: Heightened Informed Consent And Price Regulation Measures Will Improve Quality, Autonomy, And Exploitation Issues, Brenda Lin

UC Law Business Journal

This Note will examine the federal Right to Try Act, which was enacted on May 30, 2018. The federal statute followed the passage of Right to Try legislation in thirty-eight states, including California. Much controversy has surrounded “Right to Try” as an alternative to preexisting pathways to investigational drug treatments, such as traditional clinical trials and the FDA-regulated Expanded Access program, also commonly known as “Compassionate Use.”

This Note will examine those criticisms, evaluate the federal Right to Try Act, and propose amendments through the lenses of health care quality, patient autonomy, and long-term scientific innovation. Some controversy stems from …

An Introduction To Joint Powers Authorities, Their Funding Mechanisms, And Why California Should Utilize One In Order To Create An Effective Forest Management System To Prevent Wildfires, Anna Bernstein

UC Law Business Journal

In the wake of ever-increasing incidences of wildfires across California, cost-effective, practical, and functional forest management has become a priority in order to keep California’s land and residents safe. From 2018 to 2020, six out of ten of California’s worst fires, coined ”megafires” by the United States Forest Service, have rampaged through the state. These megafires often behave in unstoppable ways. Most recently, in 2018, they killed more than a hundred people and destroyed seventeen thousand homes, all while burning hundreds of thousands of acres across California. Although the end of the recent drought has brought some relief, record- breaking …

Cover

UC Law Business Journal

No abstract provided.

Legal Transplants, Law Books, And Anglo-American Corporate Fiduciary Duties, Victoria Barnes

UC Law Business Journal

This Article explores legal transplants and divergences in Anglo- American corporate fiduciary law. The internal management rule in English law acts to restrict judicial interference in corporate governance disputes. It is conceptually similar to the business judgment rule but the two remain distinct. This Article explains why Anglo-American corporate law developed differently, despite its shared roots. It pinpoints the origins of the internal management rule to Lord Lindley’s work, which was written in the late nineteenth century. Lord Lindley was central to the development of corporate law in England and other common law jurisdictions within the British Empire, but his …

Masthead

UC Law Journal of Race and Economic Justice

No abstract provided.

Building Social And Human Capital In The Black Community By Increasing Strategic Relationships, Cooperative Economics, The Black Marriage Rate, And The Level Of Educational Attainment And Targeted Occupational Training, W. Sherman Rogers

UC Law Journal of Race and Economic Justice

This is a multi-disciplinary article that focuses on the power of strategic relationships and cooperative economics in strengthening the human and social capital of the black1 community. It involves studies emanating primarily from the fields of law, economics, history, political science, and sociology. The recommendations set-forth in this article, however, are relevant to all people in America. The central thesis that underlies the entirety of this article can be found in the simple exhortation of the African Proverb—“If you want to go fast, go alone. If you want to go far, go together .”

African Americans can significantly expand the …

Mistreating Central American Refugees: Repeating History In Response To Humanitarian Challenges, Bill Ong Hing

UC Law Journal of Race and Economic Justice

In the 1980s, tens of thousands of Central Americans fled to the United States seeking refuge from civil unrest that ravaged their countries. In a largely geopolitical response, the Reagan administration labeled those fleeing Guatemala and El Salvador as “economic migrants,” detained them, and largely denied their asylum claims. The illegal discrimination against these refugees was exposed in a series of lawsuits and through congressional investigations. This led to the reconsideration of thousands of cases, the enlistment of a corps of asylum officers, and an agreement on the conditions under which migrant children could be detained.

Unfortunately, the lessons of …

Teaching Professional Responsibility Through Theater, Michael Millemann, Elliott Rauh, Robert Bowie Jr.

UC Law Journal of Race and Economic Justice

This article is about ethics-focused, law school courses, co-taught with a theater director, in which students wrote, produced and performed in plays. The plays were about four men who, separately, were wrongfully convicted, spent decades in prison, and finally were released and exonerated, formally (two) or informally (two).

The common themes in these miscarriages of justice were that 1) unethical conduct of prosecutors (especially failures to disclose exculpatory evidence) and of defense counsel (especially incompetent representation) undermined the Rule of Law and produced wrongful convictions, and 2) conversely, that the ethical conduct of post-conviction lawyers and law students helped to …

The Legal Needs Of Nonprofits: An Empirical Study Of Tax-Exempt Organizations And Their Access To Legal Services, Raymond H. Brescia, Bahareh Ansari, Hannah Hage

UC Law Journal of Race and Economic Justice

This empirical study, using quantitative and qualitative techniques, attempts to assess the state of the legal needs of nonprofit organizations, with an emphasis on the ways in which nonprofit organizations are or are not accessing assistance addressing their legal services needs. While most research into the extent to which Americans may or may not be accessing legal services focuses on the legal needs of individuals and families, this study focuses on the legal needs of nonprofit groups. Our goal with this research project is to contribute to the growing literature on the scope of unmet legal needs in the United …

Secure The Smartphone, Secure The Future: Biometrics, Boyd, A Warrant Denial And The Fourth And Fifth Amendments, Aaron Chase

UC Law Journal of Race and Economic Justice

The growing use of biometric technology—fingerprints, facial recognition and beyond—for data safekeeping—particularly for smart phones, personal computers, and identification—has raised a number of questions for Constitutional scholars. What Constitutional protections, if any, does biometric information have? Does biometric information require a warrant for law enforcement officers to compel its production? Would compelling production of a biometric password effectively force defendants to testify against themselves? Should the growing use of biometric information, by both private third parties and law enforcement, lead courts to reexamine prior precedents regarding privacy interests in personal technology and personal physical characteristics? This paper examines turns to …

The Case For A Federal Statute Authorizing Compensation For Legally Imposed Segregation, Thomas B. Stoel Jr.

UC Law Journal of Race and Economic Justice

This article, “The Case for a Federal Statute Authorizing Compensation for Legally Imposed Segregation,” proposes enactment of a law to provide reparations to the African Americans who suffered economic, physical, and psychological harm because they were victims of legally imposed racial segregation.

In 1973, Yale Law School Professor Boris Bittker published The Case for Black Reparations, a perceptive, legally rigorous analysis of the issue. Bittker concluded that a focus on reparations for slavery was likely to prove unproductive, and concentrated instead on the prospect for achieving broad- scale reparations for legally imposed segregation. Bittker reached no definitive conclusions; he ended …

Law, Race, And The Epistemology Of Ignorance, George A. MartíNez

UC Law Journal of Race and Economic Justice

Philosophers and other theorists have developed the field of epistemology which is the study of human knowledge. Critical race theorists have begun to explore how epistemological theory and insights may illuminate the study of race, including the analysis of race and the law. Such use of epistemology is appropriate because theoretical work on knowledge can be used to advance one of the key goals of critical race theory which is to understand how a regime of white supremacy and its subordination of people of color have been created and maintained in America. In this regard, philosophers and other theorists have …

Korean Americans, The Protestant Christian Church, And The Future Of Asian American Lgbtq Rights, Josiah Pak

UC Law Journal of Race and Economic Justice

This paper focuses on the Korean American Protestant Christian church and their past, present, and future support for LGBTQ rights. It explores both first-generation Korean American immigrants and their children, native-born second-generation Korean Americans. Specifically, it recounts the process of emigration for many first-generation Korean American immigrants and how it carried over the conservative, traditionalist, and religious frameworks that contribute to stonewalling future LGBTQ equality rights. Additionally, this paper addresses second- generation Korean Americans swinging between ideologies and social underpinnings of the older generation and a new “American” identity. By recounting Korean immigration to the United States, the role of …

The Making Of The Clean Air Act, Brigham Daniels, Andrew P. Follett, Joshua Davis

UC Law Journal

The 1970 Clean Air Act is arguably Congress’ most important environmental enactment. Since it became law fifty years ago, much could be and has been said about how it has changed both the physical environment and the contours of environmental law. Much less, however, has been written on the genesis of the Act itself. Where its history is discussed, it is often segmented or heavily summarized.

In this Article, we take on the story of how the Act came to be as well as how early enforcement practices cemented its importance in the legal landscape. To do so, we rely …

Pharmaceutical “Pay-For-Delay” Reexamined: A Dwindling Practice Or A Persistent Problem?, Laura Karas, Gerard F. Anderson, Robin Feldman

UC Law Journal

The Supreme Court ruled in FTC v. Actavis that a delay in generic entry may be anticompetitive when part of a patent settlement includes a large and otherwise unjustified value transfer to the generic company, termed a reverse payment patent settlement, or “pay-for-delay.” Following Actavis, drug companies have limited the size of reverse payments and have fashioned settlement terms that include more discreet categories of compensation to generic companies. In light of the fact that such settlements retain the potential for anticompetitive effects, the apparent size of the reverse payment may no longer be a useful gauge of the legality …

Fracking As A Test Of The Demsetz Property Rights Thesis, David A. Dana, Hannah J. Wiseman

UC Law Journal

Since its introduction in 1967, the account of property rights formation by Harold Demsetz has pervaded the legal and economic literature. Demsetz theorized that as a once-abundant, commonly shared resource becomes more valuable and sought-after, users will move to more clearly define property rights in the resource. Despite the high transaction costs of this approach, the costs of organizing and enforcing a rights regime become worthwhile in the face of scarcity. And privatization, in turn, leads to more efficient use of the resource by the individuals holding the property rights, with less externalization of the harmful effects of resource use. …

Generic But Expensive: Why Prices Can Remain High For Off-Patent Drugs, Frazer A. Tessema, Aaron S. Kesselheim, Michael S. Sinha

UC Law Journal

Brand-name prescription drugs are sold at extremely high prices in the US because patents and other market exclusivities provided by the government allow manufacturers to exclude direct competition. This period of market exclusivity was intended for pharmaceutical manufacturers to recoup costs associated with research and development of those products and make profits. The other intended outcome of this system is that the market exclusivity period for brand-name drugs should be self-limited, with competition being able to flourish after the market exclusivities end. Such competition has been most effectively supplied by generic drug manufacturers that produce Food and Drug Administration (FDA)-approved …

A Public Health Law Path For Second Amendment Jurisprudence, Michael R. Ulrich

UC Law Journal

The two landmark gun rights cases, District of Columbia v. Heller and McDonald v. City of Chicago, came down in 2008 and 2010, respectively. In the decade that has followed, two things have become abundantly clear. First, these cases provide little clarity about the nature and scope of Second Amendment rights, resulting in chaos and circuit splits in the lower courts. Second, growing empirical evidence has revealed that, in the background of the debate on individual constitutional rights, a serious gun violence epidemic is intensifying around the country. In one corner, gun rights advocates worry that increased firearm regulation will …

Justice Roger J. Traynor, Pragmatism, And The Current California Supreme Court, Stephen D. Sugarman

UC Law Journal

California Supreme Court Justice Roger J Traynor entered the debated between pragmatists and formalists, siding with the former in both his scholarly writings and in his judicial opinions, especially in torts. In this Article, I explore what I have identified as the leading torts decisions of the California Supreme Court involving personal injury or death in the past twenty years. I first provide background on the rise of strict product liability and an explanation of what I see as the current California Supreme Court’s misguided reliance on the Rowland factors, which promote the treatment of “no breach” cases as “no …

Roger Traynor, The Legal Process School, And Enterprise Liability, Edmund Ursin

UC Law Journal

Roger Traynor, who served on the California Supreme Court from 1940 to 1970, the last five years as Chief Justice, was one of America’s great judges. This Article compares Traynor’s view of the lawmaking role of courts with the dominant jurisprudential perspective of mainstream legal scholars at time, that of the legal process school.

Today it is widely believed that Traynor was a “firm advocate of the legal process” approach to judicial lawmaking. The thesis of this Article, however, is that Traynor was a legal realist whose jurisprudence of what Judge Richard Posner has termed legal pragmatism was at odds …

Putting Names To Money: Closing Disclosure Loopholes, Gian Gualco-Nelson

UC Law Journal

Elections create an opportunity for voters to get to know the candidates, but elections also give voters the opportunity to get to know their fellow voters. Campaigns are obligated to disclose the identity of their donors, which can make these donors’ political affiliations known to the world. Also, the identity of a donor can adversely affect the recipient’s public image and potentially, the election. These disclosure requirements arguably enable stigmatizing candidates and fellow voters for their political ideology, but this is offset by the desire to make elections transparent.

In today’s polarized society, the risk of stigma seems greater than …

Supreme Court Politics And Life Tenure: A Comparative Inquiry, Kevin Costello

UC Law Journal

While the process of nominating and confirming justices to the U.S. Supreme Court has always been political in nature, the three most recent nominations of Merrick Garland, Neil Gorsuch, and Brett Kavanaugh illustrate the extent to which the confirmation process has become especially partisan. Whereas the nominations of Antonin Scalia and Ruth Bader Ginsburg each received broad, bipartisan support, no nominee since Stephen Breyer has received more than eighty votes in the Senate. Furthermore, for the first time since 2004, the economy is not the political issue that voters are most likely to consider “very important;” that designation now belongs …

Expanding The Regulation Of Online Speech Through The Commerce Clause To Reduce Cyber Harassment, Katherine Parker

UC Law Constitutional Quarterly

This Note focuses on one potential solution for harassment many women face online: federal regulation of cyber-threats and cyber harassment. It argues that speech used online to harass and intimidate women may be regulated because the speech is not protected under the First Amendment and because the mode of communication—the Internet—is a regulatable instrumentality of commerce. Thus, this Note posits that online harassment can and should be regulated through the Commerce Clause to ensure that women can enjoy use of the internet without cyber-threats and cyber harassment.

The Twenty-First Century Poll Tax, Ryan A. Partelow

UC Law Constitutional Quarterly

Although disenfranchising voters over outstanding legal financial obligations (“LFOs”) is widely criticized, no court has yet been persuaded to strike down these laws. The practice continues to disenfranchise people based on wealth, and disproportionately affects the voting rights of people of color due to inherent racial disparities in socioeconomic status and the American criminal justice system. Although the concept of felon disenfranchisement itself has been affirmatively upheld by the U.S. Supreme Court, this Article argues that disenfranchisement for outstanding LFOs is more akin to the poll tax jurisprudence than to the felon-voting cases.

This Article aims to add to a …

Toward Tax Reform That Mirrors Our Better Selves Book Review: Anthony C. Infanti, Our Selfish Tax Laws (2018), Leo P. Martinez

UC Law Constitutional Quarterly

Professor Infanti does everyone a service by using comparative law principles to inform the tax policy debate. The lack of discipline overlap—tax law and constitutional law come easily to mind—only worsens the scarcity of scholarship that examines the Code in nuanced and constructive ways.

In his book, Tony Infanti uses comparative law principles to show how effective it can be to look at tax law in a different light Professor Infanti has chosen two separate areas as his vehicles for comparative illustration and examination of the selfishness of tax law: (1) U.S. housing policy and (2) the concept of the …