Law Commons^™

If The Hat Fits, Wear It, If The Turban Fits, Run For Your Life: Reflections On The Indefinite Detention And Targeted Killing Of Suspected Terrorists, Vincent-Joel Proulx

UC Law Journal

This Article analyzes and discusses some of the United States' unilateral policies in the war on terror, namely the indefinite detention and targeted killing of suspected terrorists. It posits that the legal community should resist recent arguments purporting to vindicate certain justifications for curtailing fundamental human rights. First, the Article rebuts recent attempts to subsume legally insulated aspects of the war on terror into one overriding security discourse, with particular resistance to the merger of human rights by the national security agenda. Second, the Article attempts to refute claims that the significance of the distinction between prisoners of war and …

Guest Worker Policy: A Critical Analysis Of President Bush's Proposed Reform, Camille J. Bosworth

UC Law Journal

The Note argues that the agricultural guest-worker program in the United States needs reform. U.S. President George W. Bush has talked publicly about the need for change since he first assumed office in 2ooo. The events of September II, 2001, however, brought what appeared to be promising discussions between President Bush and Mexican President Vicente Fox to an abrupt halt. Now, nearly five years later, meaningful changes are yet to be seen. Focusing on Mexican workers, the Note traces the historical roots of guest worker programs in the United States, analyzes the strengths and shortcomings of President Bush's proposal, and …

A Proposed Antitrust Approach To Buyers' Competitive Conduct, Thomas A. Piraino Jr.

UC Law Journal

This Article proposes a new means of regulating buyers' exercise of market power under the federal antitrust laws. The federal courts urgently need to adopt such an approach, because buyers have increased their market power in many domestic businesses. Wal-Mart's power to influence competition in retail markets is only one example of the increased market power of buyers in the United States economy. The courts' current approach to buyers' competitive conduct is confusing and inconsistent. As a result, business executives are uncertain as to the boundaries of legality for various types of buyer conduct.

This Article describes a comprehensive means …

Implementing Atkins: The Strengths & Weaknesses Of In Re Hawthorne, Christopher Scott Tarbell

UC Law Journal

In 2002, the United States Supreme Court decided the case of Atkins v. Virginia. In Atkins, the Court created a categorical exemption from the death penalty for the mentally retarded, holding that the execution of such individuals violates the Constitution's ban on cruel and unusual punishments. However, the Court left to the states the difficult task of implementing the newly announced exemption.

The California Supreme Court confronted this challenge in the case of In re Hawthorne. In Hawthorne, the court was forced to decide what standards and procedures a court should use in assessing claims for Atkins relief raised by …

A Road To Injustice Paved With Good Intentions: Maggie's Misguided Crackdown On Drowsy Driving, Joshua D. Levine

UC Law Journal

Sleep-deprived drivers pose a serious threat to the public, killing and injuring tens of thousands of Americans each year. Nevertheless, this problem was largely ignored until the summer of 2003, when the New Jersey legislature made national headlines by passing Maggie's Law. Maggie's Law is a unique revision to New Jersey's vehicular homicide statute that permits unprecedented criminal penalties for drowsy drivers who are involved in deadly automobile accidents. The law's passage has had an effect far outside New Jersey's borders, leading many other states and the federal government to consider similar legislation.

This Note details the history and language …

Civil Liability For Attorneys To Adverse Parties When A Settlement Agreement Is Breached In California, Daivd M. Lacy Kusters

UC Law Journal

When a settlement agreement is breached in California, the parties are generally solely liable for the breach. Occasionally, however, settlement agreements can create duties running between attorneys and adverse parties. In these situations, when a settlement agreement fails through no or negligible fault of the opposing party, the opposing party may be able to seek remedy through civil liability against the attorney. This Note provides an overview of the general duty that attorneys owe to third parties. It examines various causes of action available to plaintiffs and the various factors influencing liability. Lastly, this Note details a proposed virtual per …

The Political Marketplace Of Religion, Calvin Massey

UC Law Journal

Inherent in the two Religion Clauses is the possibility of conflict: some accommodations of religion in the name of free exercise may amount to forbidden establishments and some limits on religious accommodation in the name of avoiding prohibited establishments may impermissibly interfere with the free exercise of religion. Judicial mediation of the tension between the Establishment Clause and the Free Exercise Clause resolves into one of four patterns, each characterized by the degree of deference courts display toward the legislative choices of accommodation of religion. Courts may be deferential to legislative choices that arguably inhibit free exercise and foster religion; …

Progressive Consumption Taxes, Mitchell L. Engler

UC Law Journal

Recent intellectual and political forces have moved the consumption tax to the forefront of tax policy debate. Because traditional flat-rate consumption taxes, like the VAT, raise serious distributional concerns, tax scholars have responded with suggestions of innovative progressive consumption taxes. Two such proposed taxes-the Hybrid Approach and the X-tax-were independently analyzed in a recent symposium on fundamental tax reform. These two proposals contain striking similarities, as both would tax individuals at progressive rates on their wages with a separate tax on consumption less wages. However, there are significant differences. The Hybrid Approach would impose an individual tax on consumption less …

Antitrust Implications Of Casino Mergers: The Gamble Of Defining A Relevant Market, Melissa Fallon

UC Law Journal

In light of recent mergers in the casino industry, this Note examines what the FTC considers before approving or challenging a proposed merger. Defining a relevant market, a necessary step for merger analysis under the FTC and DOJ Merger Guidelines, is particularly challenging in the context of the casino industry given the array of basic products offered by casinos, the potential for submarkets of unique consumers, and the various geographic markets in which casinos compete for customers. This Note explores the frustratingly inconclusive case law available for guidance in this area and suggests what the FTC might have considered before …

The Next Step In Dna Databank Expansion? The Constitutionality Of Dna Sampling Of Former Arrestees, Jacqueline K. S. Lew

UC Law Journal

This Note examines current developments in state DNA databank laws and the controversy surrounding the passage of California's latest DNA databank statute to predict that the next step in DNA databank expansion has arrived-namely, the collection of DNA from former arrestees, who neither have been convicted of a felony nor remain in government custody. Ultimately, the Note suggests that despite the recent trend towards expanding DNA databases around the country, the DNA sampling of former arrestees crosses a bright line that represents the constitutional end of such expansion.

In pointing out that courts have often relied on a plaintiff's status …

Lifting Our Veil Of Ignorance: Culture, Constitutionalism, And Women's Human Rights In Post-September 11 America, Catherine Powell

UC Law Journal

This Article examines cultural arguments made in opposition to the ratification by the United States of the Convention on the Elimination of Discrimination Against Women (CEDAW). The failure of the United States to ratify CEDAW has been conventionally understood as grounded in concerns that the Convention is incompatible with U.S. constitutionalism- particularly notions of federalism and limited government. However, as this Article demonstrates, opponents of CEDAW who testified during the ratification debate grounded their objections explicitly in terms of culture and traditional gender roles. In particular, CEDAW opponents expressed fear that ratification would disrupt traditional cultural understandings of women's role …

Quests For Conception: Fertility Tourists, Globalization And Feminist Legal Theory, Richard F. Storrow

UC Law Journal

As the cost of in vitro fertilization in the West skyrockets and countries enact laws that drastically curtail access to assisted reproduction, couples are turning more and more frequently to fertility tourism. This Article examines the relationship between restrictive reproductive laws, thought to be expressions of local values, and globalization, the ongoing process of worldwide interconnectedness that makes fertility tourism possible. After a discussion of the meaning and causes of fertility tourism, this Article demonstrates how such tourism dampens organized resistance to laws that restrict the available forms of assisted reproduction and thus how globalization itself plays a part in …

From The Ali To The Ili: The Efforts To Export An American Legal Institution, Jayanth K. Krishnan

Articles by Maurer Faculty

In this article, I argue that those who believe that Americans can successfully export their visions of law and legal research to other countries need to consider - in addition to Japan and Germany, two countries that are often touted as exemplars - the case of India. India gained its independence from the British in 1947, and soon thereafter many American experts traveled to India in an effort to foster a culture of Western legal intellectualism. As part of their mission to improve the status of law in India, the Americans, upon their arrival, strongly advocated for the construction of …

The Asian Century: Implications For International Law, David P. Fidler

Articles by Maurer Faculty

Predictions that the 21st century will be the "Asian century" have sparked analytical interest from many disciplines but not international law. This article focuses on what implications "Asia rising" may have for international law in the 21st century. The article begins by looking at the 19th and 20th centuries as the European and American centuries respectively to assess the impact these centuries made on international law. The article then analyses possible meanings for an Asian century and frames such a century's implications for international law around the concept of a "Concert of Asia". The article argues that, through a "Concert …

Disaster Relief And Governance After The Indian Ocean Tsunami: What Role For International Law?, David P. Fidler

Articles by Maurer Faculty

The tsunami in the Indian Ocean at the end of 2004 has produced heightened scrutiny of how international disaster relief is supplied and governed. This scrutiny connects to arguments by the International Federation of Red Cross and Red Crescent Societies that more effective and efficient disaster relief requires the significant development of international law on disaster relief. This commentary analyses the historical and current relationship between international law and disaster relief and challenges the arguments that more international law on disaster relief is needed.

Playing Peekaboo With Constitutional Law: The Pcaob And Its Public/Private Status, Donna M. Nagy

Articles by Maurer Faculty

This Article is the first to consider the constitutional status of the Public Company Accounting Oversight Board (PCAOB - pronounced by some as peekaboo). Congress created the PCAOB in 2002 to regulate the accounting profession in response to scandals at Enron, WorldCom, and other public companies. The Article argues that notwithstanding the PCAOB's congressional designation as a nonprofit corporation in the private sector, its governmental creation, governmental objectives, governmental powers, and governmentally appointed board members render it a public (or state) actor for purposes of constitutional law. The Article also analyzes the PCAOB from a policy perspective, and argues that …

The Abolition Of Wealth Transfer Taxes: Lessons From Canada, Australia And New Zealand, David G. Duff

All Faculty Publications

When the United States acted to phase-out its estate tax by 2010, it joined a small but growing group of countries which have also repealed their wealth transfer taxes. In Canada, federal gift and estate taxes were repealed in 1972 and provincial wealth transfer taxes were abolished in the 1970s and 1980s. In Australia, State and Commonwealth wealth transfer taxes were repealed in the late 1970s and early 1980s. New Zealand followed suit in the 1990s, reducing estate tax rates to zero in 1992 and repealing the tax in 1999. This paper reviews the abolition of wealth transfer taxes in …

Prelude To Armageddon, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Judicial Selection By The Numbers, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Who Judges The Judges?, John V. Orth

Faculty Publications

No abstract provided.

Attorneys' Perceptions Of Child Witnesses With Mental Retardation, Rebecca Nathanson

Scholarly Works

Children with mental retardation are more likely to be abused than the general population, yet are often denied access to the justice system. Research on children without mental retardation has revealed skepticism as to their reliability as witnesses in the court of law. Even more so, children with mental retardation face the issue of credibility because of their age and disability. This study assesses attorneys' perceptions of child witnesses with mental retardation. Thirty-nine criminal attorneys completed a 33-item questionnaire designed to assess their opinions of the abilities of adults and of children with and without mental retardation to recall and …

Book Review, Walking A Gantlet: Nielsen’S License To Harass, Lynne Henderson

Scholarly Works

No abstract provided.

Reviving Constitutionalism In Iraq: Key Provisions Of The Transitional Administrative Law, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

The Report Of The U.N. High-Level Panel And The Use Of Force In Iraq In 2003, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

Who Next, The Janitors? A Socio-Feminist Critique Of The Status Hierarchy Of Law Professors, Kathryn M. Stanchi

Scholarly Works

This paper is an invitation to those in the legal academy who self-identify as egalitarian, as feminist, or as otherwise committed to equality in the law and the legal profession. The essay asks feminists and egalitarians to notice and resist the institutionalized and illegitimate status hierarchy operating in American law schools. Like any status hierarchy, its boundaries are well defined and well enforced. Additionally, and perhaps not surprising to feminists, this hierarchy is gendered, with the lowest rank overwhelmingly composed of women and the highest rank overwhelmingly composed of men. The players in this status hierarchy are the faculties and …

A Dedication To Dean Joseph P. Tomain: Educator, Scholar, And Leader, Donna M. Nagy, Barbara G. Watts

Articles by Maurer Faculty

No abstract provided.

Attacking The Ncaa's Anti-Transfer Rules As Covenants Not To Compete, Ray Yasser, Clay Fees

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Hail To The Chief: Former Law Clerks For William Rehnquist Recall What They Learned And How He Touched Their Lives, Craig M. Bradley, Laura E. Little, John C. Englander, Celestine Richards Mcconville

Articles by Maurer Faculty

Chief Justice William H. Rehnquist, who died Sept. 3, is remembered for his disarming warmth and humor, breadth of knowledge about the law, and insistence that there is life outside the office. Few knew him better than the legions of clerks who tolled with and learned from him. Indeed, the sheer number who attended his funeral testifies to how highly he was regarded. Here, four former clerks from the decades of the 1970s, '80s and '90s write about their own particular memories of the late chief justice.

Diversity: A Fundamental American Principle, David Orentlicher

Scholarly Works

In this article, Professor David Orentlicher argues that following the U.S. Supreme Court's affirmative action decisions in June 2003, both the Court in its defense of diversity and the commentators in their critiques of the diversity rationale have misjudged the public interest in diversity . Rather than having insufficient weight to justify affirmative action or reflecting a limited educational interest, diversity is a critical principle for much of American constitutional and social structure. In particular, the federalist system of government rests in large part on the belief that a diversity of approaches by the fifty states will lead to better …

An Idea Whose Time Should Never Have Come, Roger B. Dworkin

Articles by Maurer Faculty

No abstract provided.