Law Commons^™

Federal Criminal Law: The Need, Not For Revised Constitutional Theory Or New Congressional Statutes, But The Exercise Of Responsible Prosecutive Discretion, G. Robert Blakey

UC Law Journal

The state and federal courts largely exercise concurrent jurisdiction over most criminal law matters. Consequently, most discussions of federalization of crime involve the theoretical question of what crimes should or should not be federalized. Professor Blakey argues that an answer to this question can easily be found in the Constitution.

In his Article, Professor Blakey contends that the true focus of the discussion should not be on "federalization." Rather, he maintains, a meaningful evaluation of the federal system of criminal justice should question whether the system is responding to the antisocial behavior that leads to crime. The author believes we …

Advanced Micro Devices V. Intel Corp. And Judicial Review Of Commercial Arbitration Awards: When Does A Remedy Exceed Arbitral Powers, Jessica T. Martin

UC Law Journal

Commercial arbitration boasts the advantages of flexibility, efficiency, and finality. In an effort to make decisions by arbitrators binding and final, legislators have provided only limited grounds for judicial review of arbitral awards. However, arbitral choice of remedy has proven to be fertile ground for attempted judicial activism. A recent example is the California Court of Appeal's decision in Advanced Micro Devices v. Intel Corp., which was subsequently reversed by the California Supreme Court. An analysis of judicial decisions regarding how arbitrators may fashion relief reveals imprecise standards that have proven to be contradictory and unworkable.

This Note explores the …

Federal Judicial Impeachment: Defining Process Due, Alexa J. Smith

UC Law Journal

The Framers of the Constitution struggled to balance the independence of the federal judiciary with the need for judicial accountability in cases of abuse or incapacity. To ensure judicial independence, the Framers granted federal judges life tenure and protected salaries, and to address judicial accountability, the Framers created the constitutional impeachment process. Congress codified further regulation of the judiciary and the impeachment process with the enactment of the Judicial Councils Act of 1980.

This Note reviews the current impeachment process as applied in the recent controversial impeachments of three federal judges and concludes that the Judicial Councils Act denies accused …

Disclosure Under Federal Rule Of Civil Procedure 26(A)--Much Ado About Nothing, Charles W. Sorenson Jr.

UC Law Journal

Tension between open discovery practice under the Federal Rules of Civil Procedure and the adversarial tradition of the American justice system has existed for decades. Efforts to curb perceived discovery abuse or misuse, in addition to calls for litigation system reform, have resulted in amendments to several Federal Rules. The controversial Rule 26(a), which took effect in December 1993, requires litigants to automatically disclose information on witnesses and documents "relevant to disputed facts alleged with particularity" and potentially revolutionizes traditional discovery practice.

In his Article, Professor Sorenson examines the history of discovery and previous attempts to reform discovery practice. He …

Report's Draft For The Working Group On Principles To Use When Considering The Federalization Of Criminal Law, Sara Sun Beale

UC Law Journal

No abstract provided.

School Choice Policy And Title Vi: Maximizing Equal Access For K-12 Students In A Substantially Deregulated Education Environment, Stuart Biegel

UC Law Journal

Support for public school choice programs has grown significantly throughout the 1990s. The ideal of school choice envisions a world where families are no longer restricted to public schools in their designated districts, instead choosing from a wide range of schools in a large geographic area. However, a detailed examination of school choice reveals that many of the largest and most wide-ranging plans significantly infringe upon the equal educational opportunity rights of minority students and students from low income families. Two significant barriers are likely to impede the equal access rights of such students: transportation requirements and restrictive admissions practices. …

Fraud-On-The-Market Theory In State Law Securities-Fraud Suits: Mirkin V. Wasserman And An Examination Of Market Reliance Principles In The Common Law Of Deceit, James I. Jaconette

UC Law Journal

In Mirkin v. Wasserman, the California Supreme Court refused to apply the "fraud-on-the-market" theory of market reliance in a securities fraud class action brought under state law. Although this theory had previously been acknowledged under federal securities laws, the Mirkin court claimed that the California law of deceit required proof of actual reliance in all cases. The court also asserted that if it were to recognize this theory, the number of frivolous securities fraud suits would increase because of the availability of punitive damages under state law.

In his Note, the author explains that principles of market reliance (a form …

The Rhetoric Of Torts: How Advocates Help Jurors Think About Causation, Reasonableness, And Responsibility, Neal R. Feigenson

UC Law Journal

How do jurors in accident cases think about negligence, and to what extent do their conceptions conform to the law? This Article examines closing arguments in several accident cases, showing the extent to which advocates appeal to the knowledge structures and inferential heuristics that people use to judge causation and responsibility in everyday life. Through argument structure, point of view, verb tense, metaphor, and other linguistic devices, attorneys construct a rhetoric that combines legal rules with the tools of ordinary judgment. The conceptions of negligence implicit in these arguments occasionally conflict with the law; the Article indicates the cognitive and …

Unconscionability In California: A Need For Restraint And Constistency, Harry G. Prince

UC Law Journal

In California and many other states, courts often engage in the practice of reforming contracts based upon a determination that some part of the bargain was unconscionable. Professor Prince analyzes the unconscionability doctrine as it has been applied in California, particularly in the recent Buchwald v. Paramount Pictures Corp. decision. In Buchwald the court used the unconscionability doctrine to rewrite the motion picture industry contract on behalf of Art Buchwald, a sophisticated party represented by two agents. In evaluating the reasoning underlying Buchwald and other decisions, the author concludes that these cases raise significant doubt about the soundness and consistency …

Mapping The Labyrinth Of Scientific Evidence, David L. Faigman

UC Law Journal

In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court replaced the general acceptance standard of Frye v. United States, used in assessing the admissibility of expert testimony, with the validity standard of Daubert. The Daubert Court directed judges to actively evaluate scientific evidence and placed the initial burden of demonstrating validity of scientific evidence on the proponent of the evidence and the initial responsibility for evaluating that validity on the judge. This directive to judges, who are now expected to become sophisticated consumers of science, raises a number of questions and potential difficulties about the scope of this …

A Salute To Judge William W. Schwarzer, Carl Tobias

UC Law Journal

Upon the completion of Judge William W Schwarzer's half-decade as Director of the Federal Judicial Center, Professor Tobias salutes the distinguished jurist for his leadership in improving the civil and criminal justice systems. Appropriately, the lead Article in this issue focuses on one of the Federal Rules of Civil Procedure that Judge Schwarzer was instrumental in revising.

The Right Of Publicity: Maturation Of An Independent Right Protecting The Associative Value Of Personality, Sheldon W. Halpern

UC Law Journal

Starting shortly after the emergence of the right of publicity in 1953 and continuing into the mid-1980s, scholarly commentary sought to further define and develop the right. Since then, and particularly in the Ninth Circuit, courts have had many opportunities to interpret the right, and they have redefined it around the concept of "associative value."

Professor Halpern examines the right of publicity as a fully formed, mature construct that now has been largely assimilated into the mainstream of American legal thought. Professor Halpern criticizes recent commentators who, arguing from the standpoint of a more general Critical Legal Studies attack on …

Software Copyrights As Loan Collateral: Evaluating The Reform Proposals, Patrick R. Barry

UC Law Journal

Software companies rely heavily on intellectual property, particularly copyrights, for loan collateral. For many young firms, copyrights represent their only valuable asset. Two sources of law, the Copyright Act and the Uniform Commercial Code (U.C.C.), both address the perfection of security interests in such collateral. Until recently, lenders frequently filed under both systems to ensure perfection of security interests in copyrights and copyright-related receivables. In In re Peregrine, a federal judge sought to end the uncertainty by holding that the Copyright Act preempts the U.C.C. in such perfection situations.

In his Note, the author summarizes existing criticisms of the Peregrine …

Federalization Of Crime: Introduction, Mary Kay Kane

UC Law Journal

No abstract provided.

Reporters' Draft For The Working Group On Federal-State Cooperation, Harry Litman, Mark D. Greenberg

UC Law Journal

No abstract provided.

Confronting The Question Of Conscience, Deval Patrick

UC Law Journal

No abstract provided.

Security For Interlocutory Injunctions Under Rule 65(C): Exceptions To The Rule Gone Awry, Erin Connors Morton

UC Law Journal

Federal Rule of Civil Procedure 65(c) requires applicants for preliminary injunctions or temporary restraining orders to post security before the injunction will issue. Determining the amount of the security to be posted is left to the judge's discretion under the Rule. While many circuits have carved out narrow exceptions to the Rule that allow waiver of the bond, other circuits have held the bond itself to be fully within the district court's discretion. Waiver of the bond leaves the defendant without recourse if the court later determines that the defendant was wrongfully enjoined.

In her Note, the author examines the …

Professor Warren Shattuck, Leo P. Martinez

UC Law Journal

No abstract provided.

All Professors Create Equally: Why Faculty Should Have Complete Control Over The Intellectual Property Rights In Their Creations, Sunil R. Kulkarni

UC Law Journal

Most universities treat professors who create copyrightable works differently than professors who create patentable inventions with regard to intellectual property (IP) rights. Universities generally allow professors who create copyrightable works to retain full control over their works. Conversely, professors who create patentable inventions are contractually obligated to assign their inventions to the university and receive only a small percentage of any royalties generated by their inventions, while the university has full control over marketing the inventions. This Note argues that professors should own all IP rights in their creations, whether the creations are copyrightable or patentable. Faculty contracts should reflect …

The Public Forum Doctrine In The Age Of The Information Superhighway (Where Are The Public Forums On The Information Superhighway?), David J. Goldstone

UC Law Journal

The Information Superhighway, officially called the National Information Infrastructure (NII), exists today only in preliminary stages, and its full scope is impossible to determine. However, it is predicted that the NII will be the basis for dramatic changes to everyday life in the next century. It will open the possibilities for access to enormous amounts of information and for instantaneous communication with people around the world. This new domain, with its emphasis on communication, will lead to new legal insights, especially in the area of constitutional law related to freedom of speech.

In his Article, Mr. Goldstone suggests a thoughtful …

Hiv Home Testing And The Fda: The Case For Regulatory Restraint, Steven R. Salbu

UC Law Journal

Since the late 1980s, the FDA has adopted a de facto ban on human immuno-deficiency (HIV) home-testing kits. This ban has remained FDA policy even though many individuals, including those in high risk groups, have still not been tested for HIV. While pressure from the new Congress may eventually result in a change in FDA policy toward HIV home testing, the FDA presently continues to resist that change.

Professor Salbu argues that the FDA should never have adopted a blanket ban on HIV home-testing kits. He maintains that the ban was the result of speculation of psychological problems that might …

Main Line V. Basinger And The Mixed Motive Manager: Reexamining The Agent's Privilege To Induce Breach Of Contract, Stephen P. Clark

UC Law Journal

In Main Line Pictures, Inc. v. Basinger, a California judge dismissed a tortious inducement claim against the agency that allegedly advised actress Kim Basinger to breach a film contract. The dismissal was based on the "manager's privilege" that applies when an agent motivated by a principal's best interests advises the principal to breach a contract. In the Ninth Circuit and in California, the privilege has been extended to cover an agent who considered the principal's interests, but nevertheless appeared to have acted primarily in the agent's own interest.

In his Note, the author contends that the subtle expansion of the …

Greater Representation For California Consumers--Fluid Recovery, Consumer Trust Funds, And Representative Actions, James R. Mccall, Patricia Sturdevant, Laura Kaplan, Gail Hillebrand

UC Law Journal

California statutes provide elaborate protections for consumers from abuse by deceptive, unlawful, and unfair business practices. However, in practice, consumers do not receive optimal protection. Law enforcement agencies often have inadequate resources, and the private bar is hampered by the futility of small individual claims and the complexity and expense of class actions. This Article details early use of the class action procedure in consumer protection litigation and outlines problems with the procedure, such as the expense and impracticality of notice provisions and distributing judgments.

The authors explore the California courts' recent development of procedures for class actions and representative …

A Dead Man's Tale: Regulating The Right To Bequeath Sperm In California, Lisa M. Burkdall

UC Law Journal

In 1993 California courts considered a case of first impression in America: whether a man has the right to bequeath his sperm for the purpose of reproduction after his death. Hecht v. Superior Court (Kane) established that a man's "decision- making authority" over the use of his sperm for procreation suffices to constitute a property interest under California law. Accordingly, a man may direct the disposition of his frozen semen after his death and that semen may be used to father a child. While Hecht received a warm welcome from men's rights groups and bioethics scholars, criticism focused on the …

Evaluating The Rules Of Procedure And Evidence For The International Tribunal In The Former Yugoslavia: Balancing Witnesses' Needs Against Defendants' Rights, Alex C. Lakatos

UC Law Journal

The ongoing civil war in the former Yugoslavia is notorious for ethnically motivated human rights violations, including the use of mass rape as a weapon of war. In response to these abuses, the United Nations created an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.

In his Note, the author analyzes the Rules of Evidence and Procedure governing the Tribunal with an eye toward protecting the needs of female rape victims who will eventually testify before the Tribunal. Because shielding rape victims from …

A Goal-Based Approach To Drafting Intestacy Provisions For Heirs Other Than Surviving Spouses, Cristy G. Lomenzo

UC Law Journal

The laws of intestate succession affect not only decedents who die without comprehensive and valid wills, but their surviving relatives, the state, and the public at large. Intestacy statutes providing for heirs other than surviving spouses are particularly important because such statutes often dispose of the bulk of an estate.

This Note explores the various legislative goals underlying intestacy statutes, such as satisfying a decedent's presumed intentions or fostering simplicity and uniformity of the statutes. The author concludes that no state legislature has adequately promoted these goals within its intestacy statute for heirs other than the surviving spouse and proposes …

Prosecutorial Discretion And The Federalization Debate, Jamie S. Gorelick, Harry Litman

UC Law Journal

No abstract provided.

Too Many And Yet Too Few: New Principles To Define The Proper Limits For Federal Criminal Jurisdiction, Sara Sun Beale

UC Law Journal

Congress has responded to increasing public concern about violent crime by expanding the scope of the federal government's criminal authority. The 1994 Crime Bill continued this expansion by adding many new offenses and significantly broadening existing ones, resulting in a total of more than 3,000 federal crimes.

In her Article, Professor Beale argues that there are both too many federal criminal prosecutions and too few: too many, as measured by the present and future capacity of the federal courts and by the proper balance of the federal and state governments in handling criminal matters; and too few, because federal authorities …

Comment: Congressional Powers And Federal Judicial Burdens, Dennis E. Curtis

UC Law Journal

No abstract provided.

Comment: The Politicalization Of Crime, J. Anthony Kline

UC Law Journal

No abstract provided.