Law Commons^™

Pride And Prejudice And Proof: Quotidian Factfinding And Rules Of Evidence, Rosanna Cavallaro

UC Law Journal

This Article considers the novel Pride and Prejudice, by Jane Austen, as a work of literature that invites the reader and legal scholar to reflect on the modes of proof we use in our quotidian factfinding, and how they vary from those available to adjudicatory factflnders under existing rules of evidence. In particular, the novel allows those interested in intersections between law and literature to explore the preferencing of live testimony as against hearsay; the use of character or propensity evidence; and the balance between truthseeking and confidentiality that underlies rules of privilege. Sometimes augmenting traditional legal and social science …

In Search Of Gideon's Promise: Lessons From England And The Need For Federal Help, Norman Lefstein

UC Law Journal

A significant national problem is the enduring widespread crisis in providing adequate legal representation for indigent defendants in state criminal prosecutions. Insufficient funding and lack of oversight undermines the quality of public defense delivery systems while constantly risking the conviction of innocent persons. Thus, the Constitution's promise of counsel, first recognized in 1963 by the U.S. Supreme Court in Gideon v. Wainwright, remains unfulfilled. This Article, which draws upon an in-depth study of English criminal legal aid, focuses on sources of funding, selection of counsel by the client, and programs to monitor the quality of representation. Comparing the current American …

Prejudice Presumed: The Decision To Concede Guilt To Lesser Offenses During Opening Statements, Robert J. Nolan

UC Law Journal

On March I, 2004, the Supreme Court granted certiorari in Florida v. Nixon to resolve whether Strickland v. Washington or United States v. Cronic applies to ineffective assistance of counsel claims where defense counsel unilaterally concedes guilt to a lesser offense. A number of lower courts have considered this issue. Some have applied Stickland's two prong test and required the defendant to prove both deficient performance and prejudice. Other courts have held that such a concession amounts to a failure of meaningful adversarial testing and under Cronic, prejudice should be presumed. Since Bell v. Cone, where the Supreme Court held …

"Bread For The Poor": Access To Justice And The Rights Of The Needy In India, Marc Galanter, Jayanth K. Krishnan

UC Law Journal

India's courts suffer from enormous backlogs. To remedy this, Indian politicians and judges have been promoting various reforms, including alternative forms that would dispose of cases more quickly. One forum in particular, the Lok Adalat or people's court, has been promoted with special fervor for nearly two decades. The Lok Adalat has been widely trumpeted as a success by its proponents, but very little information is available on the workings of this institution. This study is a preliminary empirical assessment of several sorts of Lok Adalats. These Lok Adalats exhibit great variation in how they function. We find that their …

A Cold Night: Unconscionability As A Defense To Mandatory Arbitration Clauses In Employment Agreements, Michael Schneidereit

UC Law Journal

Mandatory arbitration clauses in employment agreements are the subject of a fair amount of controversy. While arbitration is a cost-effective method for the employer to resolve disputes, employees often have little choice as to whether to sign such agreements. Recent cases in California have found certain types of mandatory arbitration clauses in employment contracts to be unconscionable. This Note examines the larger problem of mandatory arbitration in employment agreements, and assesses various potential solutions to the problem. More specifically, it evaluates the unconscionability remedy that has been crafted by the California courts, and contrasts this remedy with the arbitration jurisprudence …

Post-Realism, Or The Jurisprudential Logic Of Late Capitalism: A Socio-Legal Analysis Of The Rise And Diffusion Of Law And Economics, Eric M. Fink

UC Law Journal

Law and Economics has been widely identified, by proponents and critics alike, as the most influential movement within legal scholarship over the past two decades or more. The emergence and growth of the Law and Economics movement coincides with a set of economic, political, and cultural developments representing a fundamental transformation of social relations on a global scale. The trends that others have identified as driving the rise of Law and Economics are encompassed within this broader transformation. Previous accounts, however, do not fully locate the movement within that historical-sociological context. Nor have they gone very far in tracing the …

Bailment And Teterinary Malpractice: Doctrinal Exclusivity, Or Not?, Katie J. L. Scott

UC Law Journal

Animals are considered the personal property of their owners, and as such, when they are delivered by their owners to a veterinarian, the facts of the situation perfectly satisfy the elements of a bailment relationship. Nonetheless, when courts consider negligence by a veterinarian, animals' classification as property is disregarded and bailment principles are not applied. Instead, veterinary malpractice principles are used. If bailment principles were applied, it would be easier for owners to prove liability for injury to their animals. In these same cases, animals' classification as property is an important factor in the determination of damages, usually limiting damages …

Alaska, The Last Frontier Of Privacy: Using The State Constitution To Eliminate Pretextual Traffic Stops, Jeffrey M. Kaban

UC Law Journal

The Alaska Supreme Court has consistently interpreted its state constitution to provide a greater right to privacy than the United States Supreme Court. In United States v. Whren, the United States Supreme Court upheld the practice of pretextual traffic stops, thereby permitting police officers to use traffic violations as a pretext to investigate crime in the absence of probable cause. However, the Alaska Supreme Courts has issued no clear ruling as to whether state case law finding pretextual stops unconstitutional remains controlling. As a result of Alaska's failure to directly address this issue, the state's lower courts are divided as …

Citation Of Unpublished Opinions As Precedent, Martha Dragich Pearson

UC Law Journal

The federal courts of appeals have used "unpublished opinions" for thirty years as one method of coping with the "crisis of volume." Recent developments demonstrate that interest in this controversial practice remains high. Panels of the Eighth Circuits and Ninth Circuits reached opposite conclusions regarding the propriety of the practice, and in so doing described the nature of the appellate process in remarkably different ways. Several circuits have recently amended their rules, liberalizing citation of unpublished opinions. The Advisory Committee on Appellate Rules has approved a proposed new rule permitting citation of unpublished opinions. Inasmuch as the rules regarding citation …

The Use Of Rules And Standards To Define A Transsexual's Sex For The Pupose Of Marriage: An Argument For A Hybrid Approach, Briana Lynn Morgan

UC Law Journal

The treatment of transsexuals under marital law has been conflicting. Though legislatures in many jurisdictions have limited marriage to one man and one woman, "man" and "woman" have not been adequately defined. Courts have employed a variety of tests in determining which gender to assign transsexuals, ranging from a hard-line rule of what sex the transsexual was born with, to multi-factored tests based on scientific definitions of gender. This conflict among the courts reflects a broader "rules vs. standards" debate in the law, the former providing clarity in the resolution of disputes, and the latter allowing for flexibility by the …

The Lsat, Law School Exams And Meritocracy: The Surprising And Undertheorized Role Of Test-Taking Speed, William D. Henderson

Articles by Maurer Faculty

Within the field of psychometrics, it is widely acknowledged that test-taking speed and reasoning ability are separate abilities with little or no correlation to each other. The LSAT is a univariate test designed to measure reasoning ability; test-taking speed is assumed to be an ancillary variable with a negligible effect on candidate scores. This Article explores the possibility that test-taking speed is variable common to both the LSAT and actual law school exams. This commonality is important because it may serve to increase the predictive validity of the LSAT. The author obtained data from a national and a regional law …

Professor Kingsfield Goes To Delhi: American Academics, The Ford Foundation, And The Development Of Legal Education In India, Jayanth K. Krishnan

Articles by Maurer Faculty

No abstract provided.

Rebuilding The Closet: Bowers V. Hardwick, Lawrence V. Texas, And The Mismeasure Of Homosexual Historiography, Jody L. Madeira

Articles by Maurer Faculty

In an effort to engage in such specification, this paper will first address the mischaracterization of history in Bowers, which portrays the historic legal and ecclesiastical penalties of what the Court labels as "homosexual activities" as a continuous, unitary narrative extending from the halls of the Emperors Theodosius and Justinian to the legislative assembly rooms of Georgia and Texas. This illusory perspective portrays the criminalization of sodomy (and therefore the identity of homosexuality itself) as an impossible cultural continuum. The impossibility of this continuum lies not only in its implicit assumption that states and other lawmaking entities throughout history shared …

Book Review. Journal Of The National Human Rights Commission, India, Jayanth K. Krishnan

Articles by Maurer Faculty

No abstract provided.

Fighting The Axis Of Illness: Hiv/Aids, Human Rights, And U.S. Foreign Policy, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Constitutional Outlines Of Public Health's "New World Order", David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Book Review. Taking Coase Seriously: Neil Komesar On Law's Limits, Daniel H. Cole

Articles by Maurer Faculty

No abstract provided.

International Law And Weapons Of Mass Destruction: End Of The Arms Control Approach?, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

The Politics Of Judicial Decision-Making In Educational Policy Reform Litigation, William S. Koski

UC Law Journal

Over the past thirty years, many state supreme courts have inserted themselves into state educational policy-making by striking down their states' school funding schemes pursuant to charges that the state had not provided a constitutionally equitable or adequate distribution of educational resources to schoolchildren. To date, there has been much scholarly discussion of the legal bases for these state supreme court decisions and there exists a growing body of literature studying the effects of such judicial intervention. Despite the vast legal literature and growing judicial impact research regarding educational policy reform litigation, little is known about why state supreme courts …

Rehabilitate The Age Discrimination In Employment Act: Resusciate The "Reasonable Factors Other Than Age" Defense And The Disparate Impact Theory, Judith J. Johnson

UC Law Journal

Contrary to earlier interpretations of the Age Discrimination in Employment Act, courts are currently allowing an employer to use age-correlated factors, such as seniority and high salary, to make unfavorable employment decisions. Most courts now hold that age-correlated factors are no longer probative at all of disparate treatment and that the disparate impact theory does not apply to the ADEA. Courts are thus allowing employers to use age-correlated factors to cut older workers from the workforce with impunity.

This article proposes a solution containing two components that, working together, could help deter the unjustified use of agecorrelated factors that exclude …

The Puzzle Of Comment J, David G. Owen

UC Law Journal

At the center of § 402A of the Restatement (Second) of Torts, the fountainhead of modern products liability law, lies a curious puzzle. Comment j to § 402A contains one sentence which says that a product bearing a warning is not defective. Some courts have read this sentence literally to mean that a manufacturer has no duty to design away product hazards - no matter how great, and no matter how simple to do so - if the manufacturer provides a warning of danger. In subordinating the duty of safe design to the duty to warn, this interpretation of comment …

Constraining Modern Mercenarism, James R. Coleman

UC Law Journal

Mercenarism's metamorphosis during the final decades of the twentieth century from the profession of soldiers of fortune into the work of publicly traded private military assistance corporations has enabled modern mercenaries to evade a burgeoning international legal movement toward their eradication. Despite persistent efforts to recognize private military corporations as mercenary companies, the evolution of legal definitions of mercenarism has failed to keep pace with the strong international consensus against mercenaries, thereby causing the letter of international law to diverge from its spirit. Hiding mercenarism behind a corporate veil flouts the spirit of international law and serves to eviscerate the …

Testimonial Hearsay As The Basis For Expert Opinion: The Intersection Of The Confrontation Clause And Federal Rule Of Evidence 703 After Crawford V. Washington, Ross Andrew Oliver

UC Law Journal

The Supreme Court recently returned to the Framers' intent behind the Confrontation Clause and overruled precedent which allowed a court to admit hearsay against a criminal defendant upon a finding that the hearsay was particularly reliable. Now, a court may admit testimonial hearsay against a criminal defendant only if the defendant has an opportunity to cross-examine the declarant. This Note examines how this decision may affect expert witness testimony offered by the prosecution in a criminal trial.

Under the Federal Rules of Evidence, expert witnesses may rely on-and disclose to a jury-inadmissible hearsay that forms the basis of their opinions. …

Facilitating Auditing's New Early Warning System: Control Disclosure, Auditor Liability, And Safe Harbors, Lawrence A. Cunningham

UC Law Journal

This Article considers the interplay between new auditing standards governing audits of internal control over financial reporting and pre-existing legal standards governing auditor liability for audit failure. The interplay produces skewed liability incentives that, if unadjusted, threaten to impair the objective of this new control-audit regime. The regime's objective is, in part, to provide an early warning to financial statement users when current financial statements are reliable but control weaknesses indicate material risk of a company's future inability to produce reliable financial statements. To be meaningful, auditor disclosure of material weaknesses in control and their potential effects on financial statements …

Debunking Dilution Doctrine: Toward A Coherent Theory Of The Anti-Free-Rider Principle In American Trademark Law, David J. Franklyn

UC Law Journal

This article argues for a fundamental shift in the way famous trademarks are protected under American trademark law. Currently, famous trademarks are protected by dilution law, which purports to prevent a particular kind of harm (i.e., the gradual whittling away of the commercial magnetism of a famous mark). The article argues that this is the wrong focus of famous mark protection, because dilution is an illusory concept; it either does not exist, or it is so difficult to prove, that it is an ineffective and misleading doctrinal tool.

The article contends that American trademark law should move from the harm-based …

Aviall Services V. Cooper Industries: Implications For The United States Liability Under Cercla, The Superfund Law, Sophia Strong

UC Law Journal

No abstract provided.

Taxing The New Intellectual Property Right, Xuan-Thao N. Nguyen, Jeffrey A. Maine

UC Law Journal

Domain names, particularly generic domain names such as men.com, loan.com, beauty.com, cool.com, and car.com, have become the new valuable intellectual property right in recent years, commanding high monetary value in the marketplace. How should the acquisition costs of such domain names be treated under the current tax regime for intellectual property? Addressing this complex question requires an examination of the character of domain names through numerous doctrines ranging from traditional intellectual property right to government contract. In addition, the question dictates a critique of whether domain names are similar to existing rights to which the current intellectual property tax regime …

"Captive Audience" Meetings In Union Organizing Campaigns: Free Speech Or Unfair Advantage?, Elizabeth J. Masson

UC Law Journal

Union density in the private sector in the United States is less than ten percent. Yet studies have shown millions of nonunionized U.S. workers would like to be represented by a union. Employer resistance to unionization is a key factor in whether employees are able to successfully elect a union as their bargaining representative. Although some tactics employers use in antiunion campaigns are unlawful under the National Labor Relations Act, "captive audience meetings" are not. Employers may lawfully hold mandatory captive audience meetings, assembling employees to listen to anti-union speeches, during an organizing campaign. The sole restriction on such meetings …

Defining Democracy: The Supreme Court's Campaign Finance Dilemma, Lori Ringhand

UC Law Journal

In deciding campaign finance cases, the Supreme Court often has stressed that its role is limited to protecting First Amendment rights and does not include promoting any particular vision of democracy. This paper questions whether these tasks are in fact divisible in campaign finance cases. It concludes that they are not. The interest asserted by the government in campaign finance cases is, inevitably, the need to improve or protect the government's vision of democracy. Evaluating the relative importance of that interest requires judges to rely on some background theory of democracy: judges simply cannot determine what constitutional weight to give …

Section 2254(D) Of The Federal Habeas Statute: Is It Beyond Reason?, Evan Tsen Lee

UC Law Journal

In Williams v. Taylor, the United States Supreme Court held that federal habeas courts may not grant relief on a claim adjudicated on the merits in state court unless the state court decision was contrary to, or involved an "objectively unreasonable" application of, federal law. Neither the opinion in Williams nor the habeas statute specify whether "objectively unreasonable" means that the state court's reasoning was unreasonable, or whether it means that the state court's result was unreasonable. The circuits are presently split on the question. The distinction matters because many state court affirmances of convictions are unaccompanied by opinion. In …