Law Commons^™

Choice, Conscience, And Context, Mary A. Crossley

UC Law Journal

In this commentary, Professor Crossley uses Professor Shapiro's Article as a springboard for considering two practices that increasingly are becoming part of the new reproductive landscape: selective reduction of multiple pregnancy and prenatal genetic testing to enable selective abortion. Professor Crossley considers how these practices might affect our understanding of personhood, particularly with respect to the types of criticisms that Professor Shapiro addresses in his Article. The nature of the threat to personhood posed by the use of selective reduction depends on whether a couple pursuing aggressive infertility treatment is fully informed, prior to commencing treatment, of the risks of …

Daddy Plants A Seed: Personhood Under Patriarchy, Barbara Katz Rothman

UC Law Journal

In her essay, Professor Rothman challenges the ability of the legal structure to address adequately the problems created by the new reproductive technologies. She argues that conceiving of such issues in terms of rights or individual liberties denies our interconnectedness.

Rothman fears the new technologies promote patriarchy by emphasizing the genetic tie over the nurturance, the connection people experience during gestation. Patriarchal social theories operate on the premise that people spring forth out of nowhere, self-interested and ready to form social contracts. Such theories deemphasize the connection with which humans enter the world-after nine months cradled in their mothers' wombs-and …

Unpacking The Jury Box, Kenneth S. Klein

UC Law Journal

This Article challenges the accusation that juries are illequipped to do justice in a complex society. The consequences of debunking the commonly believed notion of jury incompetence are twofold. First, it reveals an alternative explanation of contemporary distrust of jurors-that distrust of juries is symptomatic of a larger dynamic whereby citizens distrust any institution of democratic decision-making when the decision-makers are diverse from themselves. Second, that much of the current slate of proposed jury reforms, which are based on the false premise of juror incompetence, will harm the institution of trial-by-jury to no end.

Married Filing Jointly: Federal Recognition Of Same-Sex Marriages Under The Internal Revenue Code, Christopher J. Hayes

UC Law Journal

An important goal of the modern American gay rights movement is the right to marriage. The most promising path to this goal is the 1993 case of Baehr v. Lewin, in which the Hawaii Supreme Court held that restriction of marriage to different- sex couples presumptively violated the state constitutional guarantee of equal protection of the law. Most observers expect that by 1998, the Court will render a final decision confirming the right of same-sex couples to marry.

Once that decision is handed down, a new struggle will begin over interstate and federal recognition of same-sex marriages. The battle lines …

Speech By Dean Mary Kay Kane, Mary Kay Kane

UC Law Journal

No abstract provided.

Twelve Steps, You're Out (Of Prison): An Evaluation Of "Anonymous Programs" As Alternative Sentences, Ethan G. Kalett

UC Law Journal

America's increasingly aggressive anti-drug policies place extreme burdens on the courts, prisons, and probation programs. Yet despite these "zero tolerance" policies, drug addiction and alcoholism continue to rise. Recent evidence shows that addiction is a treatable condition, and that providing such treatment to certain types of convicted criminals can reduce recidivism. But providing such treatment can be time consuming and costly. Consequently, courts are taking increasing advantage of using Twelve Step programs like Alcoholics Anonymous as low-cost, readily available treatment alternatives.

This Note explores whether diverting criminals to Twelve Step programs adequately safeguards the needs and aims of the criminal …

A Child's Right To Be Gay: Addressing The Emotional Maltreatment Of Queer Youth, Sonia Renee Martin

UC Law Journal

Queer youth constitute an isolated and invisible population severely in need of help from all segments of society. They are harassed and rejected by their peers, the media, and the public in general. Queer youth are the most at-risk population of adolescents for suicide, homelessness, substance abuse, prostitution, and HIV infection. Most critically, queer youth often do not receive the necessary familial support needed to cope in such an environment. To the contrary, they are emotionally maltreated by their parents more often than any other group of adolescents.

The author asserts that it is imperative for the legal system to …

Ensuring Effective Communication: The Duty Of Health Care Providers To Supply Sign Language Interpreters For Deaf Patients, Elizabeth Ellen Chilton

UC Law Journal

When a profoundly deaf patient arrives for treatment at a hospital or doctor's office, how should communication barriers be overcome? Are sign language interpreters always required? Who is responsible for coordinating and paying for interpreting services? Many health care providers are uncertain about the answers to these questions and are unaware of their legal duty to establish effective communication with their deaf patients. Consequently, patients encounter considerable difficulty in getting sign language interpretation in medical settings. Many health care providers lack comprehensive policies for the provision of sign language interpreters. In addition, doctors practicing in their own offices are reluctant …

California Antitrust: Standing Room For The Wrongfully Discharged Employee, Sean P. Gates

UC Law Journal

Should wrongfully discharged employees-those who are terminated for refusing to participate in or blowing the whistle on antitrust violations-have standing under the antitrust laws? To limit the number of potential plaintiffs in antitrust actions, the federal courts have developed a detailed private standing doctrine based in part on the ill-defined concept of antitrust injury. Caught in the twilight zone of this doctrine is the wrongfully discharged employee. Although such an employee has the potential for efficient private enforcement of the antitrust laws, federal courts are at odds on whether a grant of standing to these litigants is proper. Wrongfully discharged …

"Irresponsible" Reproduction, Linda C. Mcclain

UC Law Journal

A prominent target of recent calls to restore personal responsibility through changes in law and public policy is "irresponsible" reproduction: a cluster of reproductive behaviors and choices including "illegitimacy," single-parent families, divorce, abortion, and adolescent sexual activity and parenthood. In this Article, Professor McClain critically evaluates the rhetoric of irresponsible reproduction. She identifies three paradigmatic models of irresponsibility-the single mother, the welfare mother, and the teen mother-and the three corresponding aspects of irresponsibility-immorality, unaccountability, and incapacity. Focusing upon the recent national debates over welfare reform, she argues that the rhetoric of irresponsible reproduction cannot serve as an adequate basis for …

Race And The New Reproduction, Dorothy E. Roberts

UC Law Journal

Many legal scholars and social commentators have heralded the new reproductive technologies as inherently progressive and liberating since not only do they enable sterile families to bear their own children, but they also permit novel family arrangements.

In her essay, however, Professor Dorothy Roberts argues that these technologies serve to reinforce the status quo, rather than to challenge it. In particular, Roberts argues that race influences the choice of in vitro fertilization. Roberts focuses on the negative impact that images of and the racial disparity in the choice of in vitro fertilization have on racial inequality in America. She argues …

Pregnant Men Revisited Or Sperm Is Cheap, Eggs Are Not, Ruth Colker

UC Law Journal

Professor Colker argues that courts need to be aware of the biological differences between women and men in evaluating cases involving alternative reproductive technologies. By imposing an overly formalistic notion of equality to these cases, courts have inappropriately tipped the balance in favor of men's reproductive claims. Two cases involving the disposition of frozen embryos following divorce-Davis v. Davis and Kass v. Kass-illuminate her argument.

Prenatal Screening And The Culture Of Motherhood, Lori B. Andrews

UC Law Journal

Physicians use prenatal genetic tests on pregnant women to gain an increasing amount of information about fetuses before birth. These tests do more than predict the future health of the developing fetuses, however; they transform the culture of motherhood-society's expectations of pregnant women and women's expectations of themselves. Decisions to undergo genetic testing-and control or lack of control over dissemination of the results of testing-affect women's self-image, personal relationships, and how women are judged by institutions such as insurers and employers. This article reviews psychological, anthropological, and sociological research on the impacts of genetic testing and argues that healthcare providers …

Illicit Reasons And Means For Reproduction: On Excessive Choice And Categorical And Technological Imperatives, Michael H. Shapiro

UC Law Journal

Professor Shapiro analyzes the modes of assisted reproduction available and the ramifications of taking advantage of these reproductive techniques. His analysis includes the effect of choice on individuals, motivations for using reproductive technology, the Constitutionality of enforcing agreements surrounding reproductive technology and whether reproductive technology is an appropriate use of persons under the second formulation of Kant's categorical imperative.

Professor Shapiro also addresses common criticisms of new reproductive technologies and collaborations (NRTCs). Professor Shapiro disagrees with broad condemnations of reproductive technology. He warns against dismissing NRTCs based only on a fear of new technology or a preexisting impression of societal …

Voluntary Disabilities And The Ada: A Reasonable Interpretation Of Reasonable Accommodations, Lisa E. Key

UC Law Journal

This Article addresses the question of whether a person who has a disability that was caused, continues to exist, or is aggravated as a result of that person's voluntary conduct should be entitled to the full protections of the Americans with Disabilities Act ("ADA"). Professor Key asserts that a distinction should be made between mutable disabilities and disabilities that, although caused by voluntary conduct, are now immutable. She argues that the protections of the ADA should be limited only for those persons with mutable disabilities, and then sets forth a proposal to so limit the ADA.

The ADA requires employers …

The Jury--Some Thoughts, Historical And Personal, Peter G. Keane

UC Law Journal

Periodically, our society goes through agonizing soulsearching and much hand-wringing about the efficacy and worth of the jury system. We are in the midst of such a period of analysis now as we again discover, to our seeming shock, that one of our human-created institutions has some all-too human flaws. This scrutiny is particularly prevalent due to the media's recent focus upon the American legal system and society's concomitant fascination with the distribution of justice.

This Essay provides valuable insights from an experienced litigator on the value and role of the jury system. Professor Keane examines societal expectations of the …

Resolving The Subsidiary Director's Dilemma, Eric J. Gouvin

UC Law Journal

This Article examines the fiduciary duties owed by directors of subsidiary corporations in light of traditional coprorate law and the special circumstances of the parent-subsidiary relationship. In some circumstances corporate law imposes upon directors duties running not only to the shareholders but also to nonshareholder constituencies such as "the corporation" or creditors. In the parent-subsidiary context, imposing duties that run to any group other than shareholders places the directors in an untenable position.

Professor Gouvin argues that in the parent-subsidiary context, directors of subsidiaries should be held to owe a duty solely to their parent shareholder. Any duties that corporate …

Merit, Ol' Boy Networks, And The Black-Bottomed Pyramid, Kenneth L. Shropshire

UC Law Journal

What will happen in this country when questions of merit no longer serve as barriers to the advancement of minorities, particularly African Americans, to top-level positions in American corporations and society? What will happen when merit questions are eliminated but minorities are still underrepresented in these powerful positions? Arguably, the critical issue for society then will be to determine why there remains an absence of minorities at the top. Further, if a society without merit differentiation develops and discrimination continues, should America's much-beleaguered affirmative action programs be asserted in a newly aggressive manner?

This Essay examines these issues by looking …

Progress Versus Protectionism: The Double Taxation Of Computer Software In Korea, Ariela Freed

UC Law Journal

The Republic of Korea is one of the fastest-growing economies in Asia and the eighth-largest trading partner of the United States. Despite its increasing prominence in the world market, Korea's trade practices reveal a degree of protectionism more common among less developed countries. Nowhere is this more apparent that in its policies concerning the taxation of imported computer software.

The author argues that Korea's practice of charging customs duties on the total transaction cost of software media and its data content, and later taxing the revenue derived from its domestic sale, is a form of double taxation that is virtually …

Repressed And Recovered Memories Of Child Sexual Abuse: The Accused As "Direct Victim", Rola J. Yamini

UC Law Journal

As society begins to accept the pervasiveness of child sexual abuse in this country, adults have begun to come forward with recently surfaced memories of childhood sexual abuse that occurred decades before. This has led to heated debates centering around the validity of repressed and recovered memories and around the accused abusers' rights against therapists for allegedly planting these memories.

This Note examines both sides of the repressed memory debate. In particular, the author discusses whether the accused should be considered a direct victim of therapists' negligence and allowed a cause of action for negligent infliction of emotional distress under …

William B. Lockhart And Bernard E. Witkin, Jesse H. Choper

UC Law Journal

No abstract provided.

Proposed Standards For Evaluating When The Covenant Of Good Faith And Fair Dealing Has Been Violated: A Framework For Resolving The Mystery, Thomas A. Diamond, Howard Foss

UC Law Journal

The implied covenant of good faith and fair dealing is a well-established doctrine of contract law used as a residual "'gap filler" when express contract terms or other gap-filling principles do not address allegedly impermissible conduct. Yet despite its wide recognition and inherent usefulness, the standards by which this covenant operates have remained poorly defined, at best. Consequently, the application of this covenant has been inconsistent or ad hoc.

Professors Diamond and Foss begin by identifying and exploring the myriad current approaches to the application and effect of the covenant of good faith and fair dealing. These approaches encompass the …

Not My Brother's Keeper: The Inability Of An Informed Minority To Correct For Imperfect Information, R. Ted Cruz, Jeffrey J. Hinck

UC Law Journal

The problem of imperfect information permeates discussions of both contract and tort law. Consumers, lacking perfect information, are unable to demand efficient contractual or warranty terms, and so producers choose not to provide them. Many scholars, however, have argued that an informed minority can prevent this problem. If a sufficient number of consumers are informed about the efficient terms and demand those terms, they argue, producers will respond by providing efficient terms to all consumers.

In this Article, the authors examine the informed minority argument and the debate that it has generated. In so doing, they develop a formal model …

Of Causes And Clients: Two Tales Of Roe V. Wade, Kevin C. Mcmunigal

UC Law Journal

Both scholarly and political concern has focused in recent years on the interaction between lawyers and clients in public interest practice. Critics claim that public interest lawyers dominate their clients and subordinate their interests to advance their own social and political agendas. In assessing the validity of these claims, we rarely have access to detailed accounts of public interest litigation from both the client's and the lawyer's perspectives. Professor McMunigal relies on two recent accounts of the landmark abortion case Roe v. Wade, one from the client's perspective and one from the lawyer's, to examine the dynamics of lawyer-client interaction, …

Unscheduled Departures: The Circumvention Of Just Sentencing For Police Brutality, Alexa P. Freeman

UC Law Journal

This Article examines the problems presented when courts depart downward from the federal sentencing guidelines in police brutality cases. Sentences for police officers increased following the enactment of the sentencing guidelines, which this Article attributes to two factors: the elimination of sentencing disparities between police and civilian crimes, and the assignment of additional penalties for the civil rights dimension of the crime. The author contends that, without sentencing guidelines, police brutality is not sentenced commensurate with the harm committed; judges were often constrained by community attitudes and norms, even when they recognized the problem and wanted to impose adequate terms …

To Slay A Paper Tiger: Closing The Loopholes In Vietnam's New Copyright Laws, Than Nguyen Luu

UC Law Journal

Vietnam has a long history of ignoring copyright laws at the expense of foreign authors of copyrighted works. In the last few years, the Vietnamese government has attempted to strengthen ties with the United States and other Western nations by instituting Doi Moi, a country-wide plan of economic renovation designed to attract foreign investment. Part of this plan is a revision of copyright laws intended to create an intellectual property regime conforming to international standards. Unfortunately, the latest version of the Ordinance on Copyrights and the copyright provisions of the new Civil Code have loopholes that will allow copyright piracy …

Assisted Reproductive Technology And The Family, John A. Robertson

UC Law Journal

In his Article, Professor Robertson addresses policy issues related to the use of assisted reproductive technologies (ARTs) and the industry which they have spawned. The Article identifies four major areas of policy issues relating to ARTs: medical efficacy, access to ARTs, legal infrastructure, and regulation. The Article focuses on the latter two: legal infrastructure and regulation.

Professor Robertson contends that, although ARTs can be used to form families that differ from the traditional notion of a family (in which children are produced coitally and are genetically related to both parents), ARTs should not be seen as a threat to this …

Assisted Reproductive Technology And The Threat To The Traditional Family, Radhika Rao

UC Law Journal

In Professor Rao's article, she responds to Professor Roberts' and Professor Robertson's seemingly divergent views on new reproductive technologies. Specifically, she contrasts Professor Robertson's advocacy of Constitutional protection for all procreative opportunities with Professor Robert's more skeptical view of new reproductive technologies and the racial hierarchy she suggests they create. Finally, Professor Rao warns that if left unchecked, the new reproductive technologies may broadly undermine the traditional family paradigm.

The In/Fertile, The Too Fertile, And The Dysfertile, Lisa C. Ikemoto

UC Law Journal

This article takes the ongoing debate about whether and how procreative technologies should be regulated, and goes beneath it. Starting with the characterization of procreative technology as infertility treatment, this article explores three primary sets of norms constituting that characterization-fertility, technology, and family. The analysis is an attempt to map the interconnecting discourses of fertility, technology, and family, and so, proceeds in a non-linear manner.

Professor Ikemoto begins by exploring the edges of public discussion about acceptable procreative technology uses. That is, she first questions public responses to uses that have provoked controversy, from the first 'test-tube baby' to the …

Words Of Warning For Prosecutors Using Criminals As Witnesses, Stephen S. Trott

UC Law Journal

In this Article, Judge Trott offers a step-by-step guide to avoiding the many pitfalls facing prosecutors using criminals as witnesses. Because prosecutors cannot choose the company that criminals keep, they must frequently be prepared to deal with snitches, accomplices, and informants in making a case against a defendant. These witnesses frequently have the best, first-hand knowledge of the defendant's criminal activities to offer. However, because of their inherent conflicts of interest, these witnesses can sometimes ruin a case rather than support it.

Using newspaper reports from around the country, Judge Trott illustrates how criminal witnesses can turn an otherwise strong …