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Full-Text Articles in Law
Private Bar Delivery Of Civil Legal Services To The Poor: A Design For A Combined Private Attorney And Staffed Office Delivery System, Andrea J. Saltzman
Private Bar Delivery Of Civil Legal Services To The Poor: A Design For A Combined Private Attorney And Staffed Office Delivery System, Andrea J. Saltzman
UC Law Journal
Since the advent of federally funded civil legal services to the poor, there has been a debate over which is the better delivery system for those services-the staffed office delivery system or the private attorney (judicare) delivery system. This Article does not join that debate, but rather proposes a hybrid delivery system that combines elements of both the staffed office and judicare systems. After an overview of the delivery system debate, the Article discusses the potential of a combined delivery system and presents a detailed design for such a system. The proposal includes a discussion of: type of panel; the …
The Role Of Mediation In Public Interest Disputes, Barbara Ashley Phillips, Anthony C. Piazza
The Role Of Mediation In Public Interest Disputes, Barbara Ashley Phillips, Anthony C. Piazza
UC Law Journal
The past two decades have seen a rapid increase in public interest litigation. However, in a time of decreased public funding, the survival of public interest law practice may depend on the availability of less costly alternatives to litigation. This Commentary suggests and explores one alternative: mediation. The Commentary first describes the mediation process and its general contribution to dispute resolution, and then addresses the particular value of mediation in public interest disputes. The Commentary proposes incorporating mediation into the public interest dispute resolution process, including judicial screening for cases ripe for mediation, and exploration by the federal government of …
The Void-For-Vagueness Doctrine In Village Of Hoffman Estates V. The Flipside, Hoffman Estates, Inc.: Revision Or Misapplication, Mark A. Richard
The Void-For-Vagueness Doctrine In Village Of Hoffman Estates V. The Flipside, Hoffman Estates, Inc.: Revision Or Misapplication, Mark A. Richard
UC Law Journal
In an effort to combat the problem of drug abuse, local communities have enacted statutes or ordinances that prohibit or otherwise regulate the sale, manufacture, or possession of drug paraphenalia. In Village o/Hoffman Estates v. The Floside, Hoffman Estates, Inc., the United States Supreme Court passed upon the validity of one such drug paraphenalia law and in so doing may have substantially limited a civil plaintiff's ability to challenge such a law on vagueness grounds. This Comment explores the Court's vagueness analysis in FlIpside. The Comment first outlines the provisions of the Village of Hoffman Estates ordinance and describes the …
The Application Of California Riparian Water Rights Doctrine To Federal Lands In The Mono Lake Basin, Richard P. Shanahan
The Application Of California Riparian Water Rights Doctrine To Federal Lands In The Mono Lake Basin, Richard P. Shanahan
UC Law Journal
Although California courts have consistently held that riparian water rights do not attach to federal lands, the courts have failed to distinguish between federal lands in the public domain and federal lands withdrawn from the public domain or reserved for a particular purpose. This Comment first describes water rights on federal lands and reviews California water rights doctrine. The Comment then analyzes the California cases, which are based on a series of nineteenth century acts of Congress, that hold that no riparian rights attach to federal lands. The Comment argues that the effect of removing lands from the public domain …
Implying Rights Of Action For Minorities And The Poor Through Presumptions Of Legislative Intent, Stephen E. Ronfeldt
Implying Rights Of Action For Minorities And The Poor Through Presumptions Of Legislative Intent, Stephen E. Ronfeldt
UC Law Journal
If Congress does not provide an express cause of action when creating a statutory right, federal courts must imply a private right of action if plaintiffs are to obtain judicial relief. This Article argues that the Supreme Court's restrictive legislative intent test for finding implied rights of action could effectively eliminate implied rights of action, with harsh consequences for the poor and minorities. The Article analyzes the development of implied rights of action, identifies the concept of "presumption of enforceability," and then examines the Court's application of this concept. The Article argues that federal courts, rather than strictly construing the …
Justice Rehnquist And Constitutional Interpretation, John Denvir
Justice Rehnquist And Constitutional Interpretation, John Denvir
UC Law Journal
American constitutional theory faces a dilemma. The United States Supreme Court has decided a large number of cases that are intuitively "right," but that cannot be justified under the orthodox theory of judicial review. Either the Court's behavior or the orthodox theory will have to change. This Article argues that theory will yield to practice and that a new conception of constitutional interpretation will emerge. The Article first describes the orthodox theory of judicial review, which rests on a strict construction of the constitutional text and the belief that the law is objectively determinable and can be separated from subjective …
California's Fair Employment And Housing Act: A Viable State Remedy For Employment Discrimination, Marjorie Gelb, Joanne Frankfurt
California's Fair Employment And Housing Act: A Viable State Remedy For Employment Discrimination, Marjorie Gelb, Joanne Frankfurt
UC Law Journal
California passed its Fair Employment Practices Act in 1959, five years before the enactment of title VII of the Civil Rights Act of 1964. Although title VII was originally the broader law, substantive amendments to the state Act, coupled with progressive procedural changes expanding the power of the Fair Employment and Housing Commission, have caused the state system to fill gaps that developed under the federal scheme. This Article outlines the history of the federal and California fair employment laws, and contrasts the substantive coverage of these laws, the administrative procedures that they utilize, and the relief that they make …
Title Vii Does Not Preempt State Regulation Of Private Club Employment Practices, David A. Garcia
Title Vii Does Not Preempt State Regulation Of Private Club Employment Practices, David A. Garcia
UC Law Journal
Title VII, the employment discrimination title of the Civil Rights Act of 1964, exempts private clubs from its coverage. Several states, however, have included private clubs under the coverage of their fair employment practices laws (FEP laws). This Article argues that the title VII exemption does not preempt such coverage by the FEP laws under the supremacy clause. The Article summarizes the preemption doctrine, and then focuses on the preemption provision of the 1964 Act found in title XI. The cases that have addressed this problem, especially those that have read the title VII exemption into the Civil Rights Act …
Excess Capacity: Who Gets The Charge From The Power Plant, Roger D. Colton
Excess Capacity: Who Gets The Charge From The Power Plant, Roger D. Colton
UC Law Journal
One cause of skyrocketing electricity rates is the construction of more power plants than are needed to supply current demand. Public utility commissions are faced with the difficult question of who should pay for this "excess capacity"-the utility companies, through their investors, or the consumers, as ratepayers. This Article argues that consumers should not pay the entire cost of excess capacity. The Article begins by analyzing the two historic responses to the problem, the "prudent management" and the "used and useful" theories. The Article then examines the contemporary responses to the excess capacity problem, which add the "shared risk" theory …
Public Interest Practice In Practice: The Law And Reality, Anita P. Arriola, Sidney M. Wolinsky
Public Interest Practice In Practice: The Law And Reality, Anita P. Arriola, Sidney M. Wolinsky
UC Law Journal
At its best, the practice of public interest law is exciting, stimulating, and intensely rewarding. At its worst, public interest practice is frustrating and fraught with institutional obstacles. Ironically, at a time when demand for public interest legal services is increasing, the supply of such services is decreasing. This Commentary examines the roles of law schools, lawyers and bar associations, and government as contributors to this dilemma. The Commentary then discusses five representative cases of one public interest law firm, Public Advocates, Inc., to illustrate several problems facing public interest lawyers. The Commentary challenges law schools, bar associations, and the …
Water-Quality Standards, Maximum Loads, And The Clean Water Act: The Need For Judicial Enforcement, Lawrence S. Bazel
Water-Quality Standards, Maximum Loads, And The Clean Water Act: The Need For Judicial Enforcement, Lawrence S. Bazel
UC Law Journal
The Clean Water Act of 1972 regulates the cleanliness of the nation's waters by requiring federal and state pollution-control agencies to set water-quality standards and establish maximum loads. Confusion surrounds the requirement for maximum loads and federal courts have declined to enforce it. This Comment first examines the history of the Clean Water Act of 1972, then discusses four cases in which courts have refused to enforce maximum load requirements. The Comment analyzes the procedural and substantive requirements of judicial enforcement of maximum loads, as well as the nature of the pollution involved. The Comment concludes that the courts have …
Fame And Notoriety In Defamation Litigation, James Corbelli
Fame And Notoriety In Defamation Litigation, James Corbelli
UC Law Journal
Since the landmark decision of New York Times Co. v. Sullivan, the Supreme Court has struggled to strike a balance between the oft-conflicting interests in protecting individual reputations and first amendment freedoms of expression and the press. In Gertz v. Robert Welch, Inc., the Court developed a test that focuses on the status of the plaintiff as either a public or private figure. This Comment examines the development of the public figure status by the Court prior to Gertz, analyzes the Gertz decision in light of several leading first amendment theories, and evaluates the post-Gertz Supreme Court interpretations narrowing Gertz's …
Ensuring Due Process In Alien Exclusion Proceedings After Landon V. Plasencia, Alaine R. Parry
Ensuring Due Process In Alien Exclusion Proceedings After Landon V. Plasencia, Alaine R. Parry
UC Law Journal
In Landon v. Plasencia, the Supreme Court held that the admissibility of a returning resident alien may be determined in an exclusion hearing if the due process is afforded the alien. The Supreme Court did not, however, specify what process is "due" in such a hearing. This Comment begins by discussing the constitutional status of aliens and the re-entry doctrine developed by the federal courts. The Comment then analyzes the Plasencia decision itself. The Comment suggests, based on similar situations in which the question of due process was addressed, what procedural guidelines should be followed, including notice, burden of proof, …
The Merchant Of Section 2-314: Who Needs Him, Ingrid Michelsen Hillinger
The Merchant Of Section 2-314: Who Needs Him, Ingrid Michelsen Hillinger
UC Law Journal
The Uniform Commercial Code's section 2-314 determines whether the buyer or the seller must suffer the loss occasioned by unmerchantable goods: if the seller is a merchant, he assumes the loss; if the seller is not a merchant, the buyer assumes the loss. The Code, however, fails to provide any policy statement justifying its section 2-314 merchant distinction. This Article examines and evaluates this distinction from a number of perspectives, including the Code's three warranty provisions, its overall warranty philosophy, its remedy and disclaimer provisions, and its section 2-104 merchant definition. Particular attention is given the history of the Code's …
Issues In Asbestos Litigation, Gideon Mark
Issues In Asbestos Litigation, Gideon Mark
UC Law Journal
Millions of American workers have been exposed to asbestos on the job, resulting in serious illness or death. These workers and their survivors have been denied adequate, equitable, and efficient compensation under present remedial systems. This Comment begins by discussing the medical aspects of asbestos exposure. The Comment then examines the currently available remedial systems, workers' compensation and tort compensation. It then discusses the barriers to tort recovery: statutes of limitation, the state of the art defense, proof of causation, the government contract defense, and collateral estoppel. The Comment then analyzes the two current legislative responses in the Senate and …
American Labor Law And The United States Space Shuttle, Leo Kanowitz
American Labor Law And The United States Space Shuttle, Leo Kanowitz
UC Law Journal
Potential labor law disputes in the National Aeronautics and Space Administration's space shuttle program pose unique problems. This Article discusses several problems that might arise from both shuttle-related activities on Earth and shuttle activities in space: labor disputes between NASA and its own employees, third-party labor disputes adversely affecting shuttle operations, disputes arising from the planned private management of the shuttle, and labor disputes on board the shuttle and on future space stations. In each of these cases the Article explores the extent to which the National Labor Relations Act, the Labor Management Relations Act, and other federal labor laws …
Discharged Employees: Should They Ever Have Antitrust Standing Under Section 4 Of The Clayton Act, John A. Mackerron Iii
Discharged Employees: Should They Ever Have Antitrust Standing Under Section 4 Of The Clayton Act, John A. Mackerron Iii
UC Law Journal
The possibility of an employee discharged for refusing to cooperate in his employer's antitrust violations being allowed standing to sue for treble damages under section 4 of the Clayton Act presents a serious challenge to antitrust standing doctrine. This difficulty was illustrated by two 1982 cases in which the Ninth Circuit, in Ostrofe v. H.S. Crocker Co., allowed standing to such an employee and the Seventh Circuit, in Bichan v. Chemetron Corp., denied standing. This Comment traces the development of antitrust standing doctrine in the circuits, the Supreme Court's indirect impact on that doctrine, and the Court's introduction of the …
Of Taxes And Other Casualties, Joel S. Newman
Of Taxes And Other Casualties, Joel S. Newman
UC Law Journal
There are numerous "disasterous" scenarios that, in the absence of insurance, can be financially devastating to the taxpayer, and could be considered "casualty losses." Not all have tax consequences, however, and only a limited number give rise to a personal deduction under the Internal Revenue Code. This Commentary focuses on the rationale for the choices made in this regard by the drafters of the Code. The Commentary begins with a list of scenarios, each with a different tax result. Using the scenarios as hypotheticals, the Commentary discusses the role of various tax concepts, such as "ability to pay," voluntary versus …
What's Entertainment - An Inquiry Into The Educational And Amusing Aspects Of Educational Play Parks, Jennifer J. Martin
What's Entertainment - An Inquiry Into The Educational And Amusing Aspects Of Educational Play Parks, Jennifer J. Martin
UC Law SF Communications and Entertainment Journal
An innovative type of amusement park offering a blend of education and entertainment is emerging throughout the country. The author discusses whether these educational play parks should be considered as educational facilities or amusement parks for state and local amusement tax purposes. The focus of the discussion is the examination of the terms "education" and "amusement." The author analyzes the impact of the ruling in Big Mama Rag, Inc. v. United States, and the issues in the dispute between the first educational play park, Sesame Place, and the township of Middleton.
Occupational Safety And Health Law In Sweden And The United States: Are There Lessons To Be Learned By Both Countries, Barbara Jo Fleischauer
Occupational Safety And Health Law In Sweden And The United States: Are There Lessons To Be Learned By Both Countries, Barbara Jo Fleischauer
UC Law SF International Law Review
The United States and Sweden are both highly industrialized nations whose workers are exposed to similar risks and substances. Thus, the legal problems surrounding worker protection from occupational hazards are similar. Traditions and cultural differences, however, have influenced the direction each country has taken in this area. In light of these differences, the author reviews some recent changes in Swedish occupational safety and health law and examines the important differences between the Swedish and United States approaches. She concludes that although neither country would benefit from the wholesale adoption of the other's program, each could effectively borrow ideas that proved …
Conflict Of Laws, Product Liability And The Substantive Law Of New Zealand In Bennett V. Enstrom Helicopter Corp., Patricia Barlow
Conflict Of Laws, Product Liability And The Substantive Law Of New Zealand In Bennett V. Enstrom Helicopter Corp., Patricia Barlow
UC Law SF International Law Review
The Accident Compensation Act (ACA) of New Zealand provides a uniform system of rehabilitation and compensation for personal injury or death resulting from accidents in New Zealand. This Article examines how the private international law provisions of the Act apply in aviation product liability. The Sixth Circuit case of Bennett v. Enstrom Helicopter Corp. is extensively analyzed. The author argues that the trial and appellate courts in Bennett, in holding the ACA has the exclusive remedy, misinterpreted substantive New Zealand law on recovery for injury or death. She mentions that the ACA left areas of "residual liability" and that Bennett …
The Developing Methodology For Analyzing Privacy Torts, Duncan M. Davidson, Jean A. Kunkel
The Developing Methodology For Analyzing Privacy Torts, Duncan M. Davidson, Jean A. Kunkel
UC Law SF Communications and Entertainment Journal
The authors assert the need for a common method of analyzing privacy situations that can be applied consistently by practitioners, juries and courts. They contend that confusion exists as to the legal basis of privacy torts because the right of privacy, as originally conceived by Warren and Brandeis, was never adequately defined. Prosser's analysis of privacy torts departs from the Warren and Brandeis formulation and, according to the authors, also can be criticized for lack of definition. The authors present a new methodology that analyzes privacy torts based upon the scope of consent standard. They maintain that the result will …
Subliminal Projection: History And Analysis, Thomas Albert Bliss
Subliminal Projection: History And Analysis, Thomas Albert Bliss
UC Law SF Communications and Entertainment Journal
This article examines subliminal projection, the process whereby information is transmitted to one's subconscious without one's knowledge, as it applies to audio-visual media. The author outlines the psychological basis for the process, then describes the various techniques that have been devised for exploiting the process. A detailed history of experimental and nonexperimental applications is followed by a discussion of the responses by lawmaking, regulatory and programming bodies to those applications and the process in general. The author argues that, lacking statutory bases for prevention of the use of subliminal projection, the most appropriate tort theory on which to base an …
Workers' Compensation Insurance For Entertainment Loan-Out Corporations, Edward Branigan, Bruce M. Stiglitz
Workers' Compensation Insurance For Entertainment Loan-Out Corporations, Edward Branigan, Bruce M. Stiglitz
UC Law SF Communications and Entertainment Journal
This article is an insightful discussion of the factors a California "loanout" corporation must weigh in determining what type of workers' compensation coverage, if any, it should purchase. Certain "loan-out" corporations may, according to statute, elect not to purchase coverage. Corporations so electing assume numerous risks in not purchasing coverage and may have unexpected liability to injured persons. The authors point out certain, less expensive, coverage plans may be appropriate for some "loan-out" corporations in lieu of complete or no coverage. They also reveal several ways that a "loan-out" corporation may avoid liability if it purchases partial coverage or does …
Fcc Regulation And Other Oxymorons: Seven Axioms To Grind, Erwin G. Krasnow, Harry F. Cole, William E. Kennard
Fcc Regulation And Other Oxymorons: Seven Axioms To Grind, Erwin G. Krasnow, Harry F. Cole, William E. Kennard
UC Law SF Communications and Entertainment Journal
This article takes a light-hearted, yet pointed, look at the regulatory policies of the FCC. In particular, the authors discuss seven regulatory axioms that seem to have plagued the Commission in keeping up with communications technology. If the Commission were willing to discard these "antediluvian" maxims, there is hope that the Commission can adapt to the electronic media. To this end, the authors suggest seven modern axioms to replace those that the Commission presently follows.
Voir Dire: Is There A Consitutional Right Of Access, Kathleen A. Kelly
Voir Dire: Is There A Consitutional Right Of Access, Kathleen A. Kelly
UC Law SF Communications and Entertainment Journal
The United States Supreme Court has ruled upon the public's constitutional right to attend criminal trials in Richmond Newspapers, Inc. v. Virginia, and the right to attend preliminary hearings in Gannett Co. v. DePasquale. This note analyzes whether there is a constitutional right of access to voir dire. The note explores the distinction between trial and pretrial events and the historical practice and structural purpose of voir dire. The author suggests that voir dire be considered under the Gannett analysis. Accordingly, the author concludes that there is no constitutionally guaranteed right to attend voir dire.
The Reexamination Of Cable Television's Compulsory Licensing Royalty Rates: The Copyright Royalty Tribunal And The Marketplace, Dale N. Hatfield, Robert Alan Garrett
The Reexamination Of Cable Television's Compulsory Licensing Royalty Rates: The Copyright Royalty Tribunal And The Marketplace, Dale N. Hatfield, Robert Alan Garrett
UC Law SF Communications and Entertainment Journal
This article examines the compulsory licensing royalty rates which the Copyright Revision Act of 1976 imposed on cable operators. The authors assert that changing conditions in the cable industry have eliminated the original need for a strict royalty schedule, and that the Copyright Royalty Tribunal, in its discretion, should adopt new rates which reflect those reasonably charged in the marketplace. The authors additionally argue that Congress itself should use this marketplace approach to amend the statutory rates applied to distant signal programming retransmitted by cable.
Protecting And Regulating Commercial Speech: Consumers Confront The First Amendment, Barbara Burnett
Protecting And Regulating Commercial Speech: Consumers Confront The First Amendment, Barbara Burnett
UC Law SF Communications and Entertainment Journal
Although courts have determined the necessity of regulating commercial speech, first amendment considerations also require commercial speech be accorded a certain amount of protection from regulation. Preventing false and deceptive advertising is the express goal of such regulation. The author suggests a functional analysis approach be applied to commercial speech to determine the extent of first amendment protection due. Functional analysis would break down commercial messages into those that are factually verifiable and those that are subjective. The author suggests this approach would be the first step to providing a standard by which messages may be evaluated for constitutional protection.
Don't Make Waves: Am Stereophonic Broadcasting And The Marketplace Approach, Mark Peyton Schreiber
Don't Make Waves: Am Stereophonic Broadcasting And The Marketplace Approach, Mark Peyton Schreiber
UC Law SF Communications and Entertainment Journal
This note discusses AM stereophonic broadcasting and examines the FCC's approach for the implementation of this new service. The selection of the technical standard for AM stereo was left to market forces after the Commission found itself unable to choose one proposal to be the standard. The author demonstrates why this approach is inappropriate. Of the remaining regulatory avenues available, the author feels the FCC should revise the evaluation process to more accurately reflect the differences among the proposed standards. From this fresh comparison, one should be selected to be the AM stereo standard. The Kahn proposal appears to be …
The Trouble With T-Shirts: Merchandise Bootlegging In The Music Industry, Andrew E. Clark
The Trouble With T-Shirts: Merchandise Bootlegging In The Music Industry, Andrew E. Clark
UC Law SF Communications and Entertainment Journal
Merchandise bootlegging is a serious problem in the music industry. Since potential profits are enormous and the bootleggers' costs of doing business are negligible, a host of entrepreneurs have entered the bootlegging business and are reaping millions of dollars of illicit profits. Artists and licensed merchandisers through legal efforts have helped to alleviate the problem but additional action is required. The author examines bootlegging and analyzes the theories upon which legal actions have been based. In concluding that the current remedies are inadequate, the author proposes legislative solutions that will result in effectively protecting the rights of artists and licensed …