Law Commons^™

Introduction, B. E. Witkin

UC Law Journal

No abstract provided.

Human Environment Of The Mind: Correcting Nepa Implementation By Treating Environmental Philosophy And Environmental Risk Allocation As Environmental Values Under Nepa, Victor B. Flatt

UC Law Journal

The National Environmental Policy Act (NEPA) requires all agencies to consider the environmental impact of any federal action that significantly affects the quality of the environment. Currently, certain important environmental impacts are not being considered in the NEPA analysis. These environmental impacts are associated with environmental risk allocation and environmental philosophy.

Professor Flatt argues that the failure to include the values of environmental risk allocation and environmental philosophy as environmental impacts under NEPA is inconsistent with a proper interpretation of the language and legislative history of that Act. The author argues that considering environmental risk allocation and environmental philosophy under …

You're The Top! Remarks Delivered At Justice Sullivan's 80th Birthday Celebration, B. E. Witkin

UC Law Journal

No abstract provided.

Administrative And Judicial Duties In The Trial Court After A Guilty Or No Contest Plea, George W. Nicholson

UC Law Journal

No abstract provided.

Introduction, Joseph R. Grodin

UC Law Journal

No abstract provided.

Public Values And Private Virtue, Suzanna Sherry

UC Law Journal

No abstract provided.

A Report On The California Appellate System, J. Clark Kelso

UC Law Journal

In this issue the Hastings Law Journal is proud to present a Special Report on the future of appellate justice in California. After a short Preface by the Editorial Board, we are honored to have two Introductions to the Special Report, written by Chief Justice Malcolm M. Lucas of the California Supreme Court and Bernard E. Witkin.

The centerpiece is a Report by Professor J. Clark Kelso. Professor Kelso was appointed by the Appellate Courts Committee of the Commission on the Future of the California Courts to study the appellate courts; his findings are published here in this Report. The …

Are Rules Really Better Than Standards, Joseph R. Grodin

UC Law Journal

No abstract provided.

Codification And The California Mentality, Lewis Grossman

UC Law Journal

In 1872, California moved to the forefront of American legal reform by becoming one of the first states to codify its complete body of laws. At the time of codification, California was a state whose self-image was characterized by a complex mixture of confidence and insecurity. Californians had grand visions of a bright future due to tlje perceived progression of civilization as it drifted westward. But these visions were clouded by concerns that their state lacked the capacity for order and that California was to remain intellectually and culturally barren.

Mr. Grossman argues that codification satisfied both the insecure and …

Measuring Constitutionality Transactionally, David L. Faigman

UC Law Journal

In his Article, Professor Faigman argues that the principal complaint about balancing-that rights and government interests are incommensurable and therefore not amenable to balancing- is misplaced. The so-called apples and oranges complaint assumes that the only way to compare liberty and government interests is through a common denominator. Although liberty and government interests are indeed independent factors, he argues, they are not unrelated. Departing from some of his earlier works on "Madisonian Balancing," Professor Faigman proposes a theory of "Constitutional Modeling," in which he describes how the relationship between liberty and government interests can be delineated through a third factor: …

Nature Of The Right To An Abortion: A Commentary On Professor Brownstein's Analysis Of Casey, Robin L. West

UC Law Journal

No abstract provided.

Fake Incommensurability: A Response To Professor Schauer, Jeremy Waldron

UC Law Journal

No abstract provided.

Some Questions About Perfectionist Rationality Review, Vikram David Amar

UC Law Journal

No abstract provided.

Common Regulation: Legal Origins Of State Power In America, William J. Novak

UC Law Journal

Modern, liberal constitutional scholars are obsessed with balancing private rights against public values. This balancing act presumes private rights and public values are each confined to their own spheres and intrinsically antagonistic. This antimony is portrayed as the way it should be, and always has been. Professor Novak's Article challenges this version of American constitutional history. It argues that the modern, liberal version of constitutional law is only the most recent in a long line of competing constitutionalisms of the past. More specifically, it argues that the private rights-public values antimony, which is the hallmark of modern, liberal constitutionalism, is …

Another Such Victory--Term Limits, Section 2 Of The Fourteenth Amendment, And The Right To Representation, Mark R. Killenbeck, Steve Sheppard

UC Law Journal

Many states have passed, or are considering, statutes to limit the number of terms their members of Congress may serve. These term limits pose fundamental questions about the nature and structure of our constitutional system since term limits may restrict the right to vote in conflict with the Constitution. Section 2 of the Fourteenth Amendment mandates that the "basis of representation" of a state's delegation to Congress be reduced for any state that denies or abridges the right to vote at any election for Representatives in Congress.

In their Article, Professors Killenbeck and Sheppard begin by discussing the contemporary arguments …

Beyond Victim Impact Evidence: A Modest Proposal, Teree E. Foster

UC Law Journal

The United States Supreme Court held in Payne v. Tennessee that the introduction of 'victim impact' evidence in capital cases does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. The fact finder in a capital case may consider the unique consequences of a specific murderous act in order to assess the defendant's blameworthiness and, in turn, to determine whether he should be sentenced to death.

Dean Foster wholeheartedly agrees with the reasoning underlying the Payne decision, but points out that the Court did not take its premises to their logical conclusion. In her Proposal, she sets forth …

Interstate Child Custody And The Parental Kidnapping Prevention Act: The Continuing Search For A National Standard, Linda M. Demelis

UC Law Journal

The federal Parental Kidnapping Prevention Act (PKPA) was passed in 1980 to enhance uniformity in the resolution of interstate jurisdictional disputes involving child custody. Although the PKPA has helped to reduce such conflicts, it has not completely eliminated the problem of competing custody decrees because courts differ in their interpretations of the PKPA's jurisdictional rules. Confusion also remains about the extent of a court's power to modify a child custody decree entered by another state. As a result, the uniform national standard for resolving interstate custody disputes, envisioned by the drafters of the PKPA, has not yet been achieved.

This …

That's Funny, You Don't Look Like You Control The Government: The Sixth Circuit's Narrative On Jewish Power, Steven Lubet

UC Law Journal

For centuries, anti-semitic belief has centered around the myth that Jews surreptitiously control government and finance. This ancient misconception has not completely faded and often surfaces in contemporary society. Most recently, Khalid Abdul Mohammad, a former spokesperson for the Nation of Islam, angered Jews and many others with his strident rhetoric that warned of secret Jewish control over the United States government. However, the influence of the ancient myth of Jewish control may often be expressed more subtly.

In his Essay, Professor Lubet argues that the subtle influences of ingrained anti-semitic belief were revealed in the Sixth Circuit's decision in …

The Evolution Of The Nuisance Exception To The Just Compensation Clause: From Myth To Reality, Scott R. Ferguson

UC Law Journal

The "nuisance exception" to the Just Compensation Clause of the Fifth Amendment provides that a government does not have to pay for diminutions in land value resulting from its efforts to suppress a nuisance. Despite widespread acceptance by commentators, the exception has never been established, and nuisance has been merely one factor among many balanced by courts evaluating land use regulations.

In Lucas v. South Carolina Coastal Council, the Supreme Court held that the nuisance exception was categorical. This Note examines the origin and evolution of the "nuisance exception" before Lucas. It then considers the categorization resulting from Justice Scalia's …

Coming Into Being: Law, Ethics, And The Practice Of Prenatal Genetic Screening, Michael J. Malinowski

UC Law Journal

The scientific community stands on the brink of knowing and potentially controlling our genetic makeup. The ability to isolate the genes responsible for a variety of diseases and character traits is expanding exponentially. Prospective parents are being given access to this technology through the willingness of research laboratories to perform prenatal genetic testing. The practice of prenatal genetic screening has already become widespread and promises to increase dramatically as the reliability of genetic testing improves. A society in which prospective parents have the ability to control the genetic makeup of their children is becoming a reality.

This expansion in scientific …

Some Reflections About Justice Sullivan, Joseph Grodin

UC Law Journal

No abstract provided.

New Technology And Old Protection: The Case For Resale Royalties On The Retail Sale Used Cds, Carla M. Miller

UC Law Journal

The development and introduction of audio compact disc technology into the consumer market has been an enormous commercial success. Due to its relatively low production cost, convenient packaging, and near indestructibility, the compact disc has virtually rendered traditional recording media obsolete. In mid-1993 several music retailers announced their intent to capitalize on the most attractive characteristic of the compact disc-its durability-by actively promoting a resale market for used CDs. The retailers' practice of selling used CDs is protected by the "first sale" doctrine of federal copyright law and currently represents a windfall for them since resold goods fall outside copyright …

Rethinking The After-Acquired Evidence Defense In Title Vii Disparate Treatment Cases, Richard G. Steele

UC Law Journal

Under the doctrine of after-acquired evidence, an employer may avoid liability for a discriminatory employment decision by pointing to evidence of employee wrongdoing that it discovered after the time the employment decision was made. This evidence, which usually consists of r~sum6 fraud or on-the-job misconduct, provides a complete defense to a federal discrimination claim if an employer is able to show that it would never have hired the employee or that it would have fired the employee had it known of the information. Courts applying the after-acquired evidence doctrine reason that employees, responsible for misconduct on the job, suffer no …

Inheritance And Bankruptcy: The Meaning Of The "Fresh Start", Adam J. Hirsch

UC Law Journal

Modem bankruptcy law uses the date of the bankruptcy petition as a hypothetical "line of cleavage," dividing prepetition assets, which flow into the bankruptcy estate for distribution to prepetition creditors, from postpetition assets, which belong to the debtor. Thus the date of the petition marks a "fresh start" for the debtor. However, the Bankruptcy Code makes an exception to the "line of cleavage" for inherited assets: Any right to an inheritance arising up to six months after the date of the petition pours back into the estate, and is available to satisfy creditors' claims.

Professor Hirsch argues that the six-month …

The Modern Era In California Water Law, Brian E. Gray

UC Law Journal

California's water resources system is poised at a turning point. For the first time since the great era of water project development concluded, water has been directed away from the major water supply projects and reallocated to enhance water quality and instream flows in the Sacramento-San Joaquin Delta and to restore anadromous fish populations in the principal rivers of the Central Valley system.

In this Article, Professor Gray describes and evaluates the laws governing the reallocations of water that have been, or will likely be, engendered by these developments. He begins by reviewing the events that led up to these …

Science Misconduct And Due Process: A Case Of Process Due, Elizabeth Howard

UC Law Journal

Recent incidents involving possible misconduct on the part of prominent scientists have focused attention on the issues involved in determinations of science misconduct. Despite their notoriety, however, determinations of science misconduct are often marked by casual or nonexistent regard for the rights of the accused. Furthermore, a scientist who has been adjudged guilty of misconduct faces potential professional ruin.

This Note argues that the presence of this combination in science misconduct investigations constitutes a denial of due process to accused scientists. The author proposes creating an independent federal agency to deal with cases involving possible science misconduct, with a legal …

Thou Shalt Not Steal: Grand Upright Music Ltd. V. Warner Bros. Records, Inc. And The Future Of Digital Sound Sampling In Popular Music, Carl A. Falstrom

UC Law Journal

In Grand Upright Music Ltd. v. Warner Bros. Records, Inc., plaintiff was the copyright owner of "Alone Again (Naturally)"- a song written and recorded by Gilbert O'Sullivan. "Alone Again (Naturally)" was sampled in a subsequent song by rap artist Biz Markie. Although Biz requested permission to use the sample, his album was released before permission was granted. Plaintiff filed suit to enjoin the use of the sample by Biz. The United States District Court granted the injunction, referring Biz Markie and the other defendants to the United States Attorney for possible criminal prosecution. In its decision, the court equated sampling …

Depublication Deflating: The California Supreme Court's Wonderful Law-Making Machine Begins To Self-Destruct, Stephen R. Barnett

UC Law Journal

No abstract provided.

Creating An Appetite For Appellate Reform In California, Gerald F. Uelmen

UC Law Journal

No abstract provided.

The Constitutionality Of The Freedom Of Choice Act Of 1993, Douglas A. Axel

UC Law Journal

The Freedom of Choice Act of 1993 is currently pending in both the House and the Senate. The purpose of this bill is to codify the Supreme Court's landmark holding in Roe v. Wade, which prohibited states from regulating abortion without a compelling interest for doing so. Like most things having to do with the right to abortion, the Freedom of Choice Act has been the subject of fierce political debate. Indeed, this political debate will likely result in the bill's demise.

This Note does not address these political issues, however. Instead, the author addresses a more fundamental constitutional issue: …