Law Commons^™

Speaking With Complete Candor: Shareholder Ratification And The Elimination Of The Duty Of Loyalty, J. Robert Brown Jr.

UC Law Journal

Under their fiduciary obligations, directors must act with complete loyalty to the companies they manage. This duty prohibits selfdealing by directors unless the transaction is fair to the corporation. Delaware courts have, however, weakened this standard by providing that self-dealing transactions approved by "disinterested" and informed shareholders are subject to the business judgment rule and can only be challenged for waste, which is virtually impossible to prove. The effect has been to eliminate fairness as a component of the duty of loyalty. This approach is inappropriate because "disinterested" approval does not eliminate interested influence, something not true in the context …

Identity Theft, Privacy, And The Architecture Of Vulnerability, Daniel J. Solove

UC Law Journal

No abstract provided.

Consent Forms As Part Of The Informed Consent Process: Moving Away From "Medical Miranda", Victor Ali

UC Law Journal

This Note examines the current ills of the law of informed consent and seeks to address these problems by calling for change on two levels. From a theoretical perspective, informed consent can be improved through closer adherence to a collaborative, autonomyenhancing model of medical decision-making, rather than the current harm-avoidance approach. On a practical level, this Note advocates for changes to the manner in which consent forms are used. Specifically, consent forms should be used as tools to increase patients' understanding of and participation in medical decisions, in contrast to the commonly held view of such forms as waivers of …

Golden Gateway And The Search Of A Fairer Application Of California's Constitutional Right To Free Expression, Eileen K. Chauvet

UC Law Journal

Over twenty years after its landmark decision in Robins v. Pruneyard Shopping Center, the California Supreme Court revisited the issue of constitutionally protected speech on private property. The resulting plurality opinion in Golden Gateway Center, Inc. v. Golden Gateway Tenants Ass'n clarified that free expression on private property may be protected by the state constitution only when that private property is freely open to the public. While the case showed a strong desire by members of the court to return to free speech jurisprudence more in line with the First Amendmentrequiring state action before a constitutional claim could be madethere …

The Definition Of "Serious Health Condition" Under The Family Medical Leave Act, Jessica Beckett-Mcwalter

UC Law Journal

This Note examines the definition of "serious health condition" under the Family Medical Leave Act ("FMLA"). The FMLA allows an employee to take time off from work if she suffers from a "serious health condition" or needs to care for a family member with a "serious health condition." The Department of Labor regulations provide that a "serious health condition" requires inpatient care or continuous treatment. Many courts have interpreted the Department of Labor regulations as setting up a bright-line test for determining whether an illness constitutes a "serious health condition" under the FMLA. This Note argues that the Department of …

Integrity Review Of Statutory Arbitration Awards, Calvin William Sharpe

UC Law Journal

The 1991 Supreme Court decision in Gilmer v. Interstate/Johnson Lane Corp. introduced a new era in the enforcement of statutory rights designed to protect individuals in the workplace. No longer would employees be entitled to a judicial forum or employers limited to such a forum in adjudicating workplace disputes. Rather, Gilmer created the possibility that pre-dispute employment contracts could bind workers to litigate important public rights in the private forum of arbitration under the auspices of the Federal Arbitration Act. This possibility reached fruition in the Court's 2001 decision in Circuit City Stores, Inc. v. Adams, making such pre-dispute arbitration …

Hearing Voices: Speaker Identification In Court, Lawrence M. Solan, Peter M. Tiersma

UC Law Journal

Many of the problems that people have identifying speakers solely by their voices are similar to those that people have as eyewitnesses. The amount of exposure, the nature of the identification process, and the number of exposures all matter in determining how likely a witness is to make a correct identification. Yet while the reliability of eyewitness identification has been a focal point in the news, scholarly literature, and the courts, the reliability of earwitness identification has gone virtually unnoticed in the case law and legal literature. The reluctance of the legal system to deal with this problem stems from …

Privacy Property, Information Costs, And The Anticommons, Edward J. Janger

UC Law Journal

No abstract provided.

Expectation Damages And The Theory Of Overreliance, Melvin A. Eisenberg, Brett H. Mcdonnell

UC Law Journal

The basic remedy for breach of a bargain contract is expectation damages, which puts the injured party in the position she would have been in if the contract had been performed. It is generally accepted that the expectation measure provides efficient incentives to a promisor. Beginning about twenty years ago, however, lawand- economics scholars developed a model of damages which showed that the expectation measure can provide inefficient incentives to a promisee. The theory is that the expectation measure insures the promisee's reliance, and may thereby cause the promisee to overrely-that is, to invest more heavily in reliance than efficiency …

"Muslim Rage" And Islamic Law, Wael B. Hallaq

UC Law Journal

In this Lecture, it is argued that a significant factor behind the recent rise of so-called Islamic "fundamentalism," in both of its violent and nonviolent forms, is the structural uprooting of the Islamic legal institutions during the middle of the nineteenth century and thereafter (a factor neglected by analysts). When the colonialist powers induced western legal "reforms" that came to displace traditional and indigenous Islamic law, little did they realize that such a process of aggressive change was in the long run to lead to both brutal military dictatorships (during the past half century) and, more recently, to violent reactions …

Homicide On Holiday: Prosecutorial Discretion, Popular Culture, And The Boundaries Of The Criminal Law, Carolyn B. Ramsey

UC Law Journal

As tort reforms have decreased plaintiffs' opportunities to recover for injuries and deaths arising from popular "extreme" sports, prosecutors have become more willing to bring criminal charges against participants in these inherently dangerous sports. This Article explores the emerging tensions between the popularity of these sports and the prosecutorial decisions resulting in the charging and conviction of "extreme" sport athletes deemed responsible for recreational injuries and fatalities.

Demonstrating the increasing popularity of "extreme" sports and examples of injury and death resulting from them, this Article shows that tort reform and the economic influence of service providers, such as ski areas, …

Slaughter-House Five: Views Of The Case, David S. Bogen

UC Law Journal

This Article discusses five views of the Slaughter-House Cases: (I) that Justice Miller was deliberately ambiguous about whether the Bill of Rights is incorporated against the states by the privileges and immunities clause of the Fourteenth Amendment; (2) that Justice Miller rejected incorporation through the privileges and immunities clause; (3) that he adopted incorporation of the Bill of Rights in the Slaughter-House Cases; (4) that the Slaughter- House Cases should be reexamined and overturned by the modern court; and (5) that the Slaughter-House Cases should remain the way in which the privileges or immunities clause of the Fourteenth Amendment is …

The Insufficiency Of Antitrust Analysis For Patent Misuse, Robin C. Feldman

UC Law Journal

Difficulties at the intersection of patent misuse and antitrust cannot be eased by requiring the application of antitrust rules to test for patent misuse. Nevertheless, in the last decade, the Federal Circuit has altered the doctrine of patent misuse by taking this approach.

The Federal Circuit's approach is inconsistent with legislative and judicial precedent and threatens to distort both patent and antitrust law. More importantly, using antitrust rules to test for patent misuse is inadequate because the policies underlying patent misuse are not confined to limiting the types of monopoly harms that antitrust recognizes.

This Article reviews the history of …

Negligent Infliction Of Emotional Distress: Has The Legislative Response To Diane Whipple's Death Rendered The Hard-Line Stance Of Elden And Thing Obsolete, Michael Jay Gorback

UC Law Journal

On January 26, 2001, Diane Alexis Whipple was savagely attacked and mauled to death by two Presa Canario dogs as she was opening the front door to her San Francisco apartment. The following March, Whipple's partner, Sharon Smith, commenced a wrongful death lawsuit against the dogs' owners, Marjorie Knoller and Robert Noel. Recognizing that under the current legal regime, Smith's suit would almost certainly be dismissed on demurrer because the two women were related by neither blood nor marriage, the California Legislature enacted section 1714.01 of the Civil Code, which would enable domestic partners, such as Smith, to sue for …

Should Directors Reduce Executive Pay?, Randall S. Thomas

UC Law Journal

This Article examines internal pay disparities in American public corporations and argues that wide gaps between the top and bottom of the pay scale can, in certain circumstances, directly and adversely affect firm value. Further, this Article argues that corporate boards should be informed about these effects, and that they should, in many cases, reduce internal pay differentials to address them. In support of this thesis, the Article analyzes numerous empirical studies that illustrate the underlying premise that wide disparities in corporate pay scales can adversely affect firm value. These studies demonstrate that, at many types of organizations, as internal …

Privacy Wrongs In Search Of Remedies, Joel R. Reidenberg

UC Law Journal

No abstract provided.

State Wiretaps And Electronic Surveillance After September 11, Charles H. Kennedy, Peter P. Swire

UC Law Journal

No abstract provided.

A Better Way To Approach Privacy Policy In The United States: Establish A Non-Regulatory Privacy Protection Board, Robert Gellman

UC Law Journal

No abstract provided.

Did Privacy Cause Identity Theft?, Lynn M. Lopucki

UC Law Journal

No abstract provided.

Practice What You Preach: California's Obligation To Give Full Faith And Credit To The Vermont Civil Union, Christopher D. Sawyer

UC Law Journal

This Note evaluates the inter-jurisdictional effect of the Vermont Civil Union statute. A same-sex couple who enters into a civil union in Vermont currently enjoys all of the Vermont state benefits typically conferred only on married couples. The Federal Defense of Marriage Act ("DOMA") removes the burden on states of having to afford full faith and credit to same-sex marriages. As such, this Note discusses whether the DOMA is applicable to the Vermont Civil Union in addition to same-sex "marriages." Furthermore, this Note discusses whether California, if not obliged federally under the DOMA to recognize the civil union, is nonetheless …

German And U.S. Telecommunications Privacy Law: Legal Regulation Of Domestic Law Enforcement Surveillance, Paul M. Schwartz

UC Law Journal

No abstract provided.

Lifting The "Fog" Of Internet Surveillance: How A Suppression Remedy Would Change Computer Crime Law, Orin S. Kerr

UC Law Journal

No abstract provided.

Trustwarp: The Importance Of Legal Rules To Electronic Commerce And Internet Privacy, Peter P. Swire

UC Law Journal

No abstract provided.

Information Privacy Law In The European Union: E Pluribus Unum Or Ex Uno Plures?, Andrew Charlesworth

UC Law Journal

No abstract provided.

Are The U.S. Patent Priority Rules Really Necessary?, Mark A. Lemley, Colleen V. Chien

UC Law Journal

The United States is the only country in the world that awards patents to the first person to invent something, rather than the first to file a patent application. In order to determine who is first to invent, the United States has created an elaborate set of "interference" proceedings and legal standards to define invention and decide how it may be proven. Supporters of this system claim that it is necessary to protect small inventors, who may not have the resources to file patent applications quickly, and may therefore lose a patent race to large companies who invented after they …

The Price Of Macroeconomic Imprecision: How Should The Law Measure Inflation?, Jim Chen

UC Law Journal

Because no economy is forever free from price change, a legal system that seeks to maintain its vitality across the full range of macroeconomic conditions must adopt a proper measure of inflation. In areas such as taxation, economic regulation, and private contracting, the law's response to inflation constitutes a policymaking opportunity in its own right. In campaign finance and judicial compensation, the legal treatment of inflation may have constitutional consequences.

In spite of inflation's profound ramifications for the law, federal law has taken a seemingly haphzard approach toward its measurement. Federal statutes specifying one price index strongly favor the Bureau …

Playing Ostrich With The Faa's History: The Scope Of Mandatory Arbitration Of Employment Contracts, Claire Kennedy-Wilkins

UC Law Journal

Section 1 of the Federal Arbitration Act ("FAA") states that "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any class of workers engaged in foreign or interstate commerce." The Court has interpreted this section very narrowly so that it only applies to seamen, railroad, and other transportation employees. This Note examines the historical context in which the FAA emerged and argues that the Court has ignored the original intent of the Section 1 exception. The note examines the meaning of the term "engaged in commerce" at the time the FAA was enacted, the legislative …

Marital Immunity, Intimate Relationships, And Improper Inferences: A New Law On Sexual Offenses By Intimates, Michelle J. Anderson

UC Law Journal

Today, to one degree or another, marital immunity for sexual offenses persists in over half the states. Underlying the marital rape immunity has been the assumption that when a woman enters into a marriage, she gives her ongoing consent to sexual intercourse. This Article argues that states must abolish this immunity to make the law formally neutral on the marital status of the parties. However, as this Article argues, such formal neutrality is insufficient. The ideology of ongoing consent underlying the marital rape immunity has infected the way the legal system treats sexual offenses among intimates who are not married. …

The Dubious Concept Of Jurisdiction, Evan Tsen Lee

UC Law Journal

The conventional wisdom about jurisdiction is that it equals power and is conceptually distinct from the merits. In this Article, Professor Lee challenges both those notions. Jurisdiction is more akin to legitimate authority than to power, and, as such, cannot be conceptually distinguished from the merits, which also ultimately pertain to legitimate authority. Professor Lee argues that courts should therefore abstain from the metaphysics of jurisdiction-they should always ask whether, all things considered, they should rule as a plaintiff asks, not whether they are capable of so ruling.

Fear And Loathing In America: Application Of Treason Law In Times Of National Crisis And The Case Of John Walker Lindh, Suzanne Kelly Babb

UC Law Journal

Treason is the only crime defined in the Constitution. It occupies this notable position neither because the framers were particularly fearful of the effects of traitorous activities nor because they believed it to be far more heinous than all other crimes. Rather, the available historical notes, and the language of the provision itself, make clear that the reason the constitution's authors included a definition for the crime of treason was because they were concerned with what might happen to those accused of the crime if it were not carefully circumscribed. Treason is a loaded concept, carrying with it notions of …