Law Commons^™

Dynamic Surveillance: Evolving Procedures In Metadata And Foreign Content Collection After Snowden, Peter Margulies

UC Law Journal

This Article outlines a dynamic conception of national security surveillance that justifies programs disclosed by Edward Snowden but calls for greater transparency and accountability in the wake of Snowden’s revelations. The dynamic conception supports the legality of section 215 of the USA Patriot Act and section 702 of the Foreign Intelligence Surveillance Act (“FISA”), programs that received informed input from all three branches of government. Each program is part of a long democratic experiment in the integration of secrecy, deliberation, and strategic advantage that dates to the Constitution’s framing. Both programs reflect Congress’s concern that intelligence collection be sufficiently agile …

Intellectual Property Infringements & 3d Printing: Decentralized Piracy, Ben Depoorter

UC Law Journal

By drastically reducing the role of intermediaries in manufacturing, 3D printing is likely to set about the next wave of decentralized, non-commercial infringements of intellectual property rights. Drawing upon the lessons from the entertainment industry’s litigation campaign against illegal file sharing, this paper describes some of the common characteristics of decentralized piracy. I show that, like copyright enforcement on file-sharing networks, intellectual property enforcement of 3D printing faces economic and social norm complications that make traditional, litigation based enforcement ineffective and possibly counterproductive.

Paying For Water In California: The Legal Framework, Brian Gray, Dean Misczynski, Ellen Hanak, Andrew Fahlund, Jay Fahlund, David Mitchell, James Nachbaur

UC Law Journal

Over the past four decades, California voters passed a series of initiatives that amended the California Constitution to limit the power of the state legislature and local governments to enact taxes and restrict their authority to adopt fees and other charges to fund government programs. Three of these initiatives—Proposition 13 (enacted in 1978), Proposition 218 (passed in 1996), and Proposition 26 (approved in 2010)—have placed significant constraints on the funding of water resources projects. Although each of these laws has enhanced the transparency and accountability of the decision-making process, the funding constraints now jeopardize an array of vital water supply, …

The New Steam: On Digitization, Decentralization, And Disruption, Deven R. Desai

UC Law Journal

Digitization is the new steam. Steam allowed us to leverage like never before and spawned a series of new offerings and new needs. The steam era started with many competitors and inventors and ended with only a few concentrated winners. The winners contributed vast amounts to society and spawned a need for new laws, from antitrust to product liability to intellectual property to securities, and more. Just as steam disrupted old industries and fostered new ones, digitization is providing the same changes today. Digitization opens the door to decentralized production, lower costs, and disruption of incumbents, but digitization does not …

Guns Don’T Kill People, 3d Printing Does? Why The Technology Is A Distraction From Effective Gun Controls, Rory K. Little

UC Law Journal

3D printing is technology that allows three-dimensional physical objects to be created by using a relatively small and inexpensive machine that looks much like a desktop paper printer. 3D printers have already been used to create guns and shotgun cartridges (but not ammunition), and the prospect that criminals will be able to “print” operational weapons at home has regulators in a tizzy. Some argue that 3D printing should be highly regulated to avoid such dangers. In this Essay invoking Bewitched as the theoretical example of instantaneous 3D printing, Professor Little argues that gun control advocates should focus primarily on regulating …

Thou Shalt Not Take The Name Of The Lord Thy God In Vain: Use And Abuse Of Religious Exemptions From School Immunization Requirements, Dorit Rubinstein Reiss

UC Law Journal

School immunization requirements are one way that states protect school age children against vaccine-preventable diseases. At present, forty-eight states allow parents to exempt their students from immunization requirements based on religious reasons, philosophical reasons, or either. This Article focuses on the religious exemption and makes three points. First, people lie to get a religious exemption. Second, U.S. jurisprudence makes preventing such abuse very hard. And third, because the religious exemption is so prone to abuse, we should remove it. The first part of the Article discusses the jurisprudence, and why our courts limit state officials’ ability to police abuse of …

Note – Return To “Reasonable” In Section 1983 Police Pursuit Excessive Force Litigation, Benjamin Buchwalter

UC Law Journal

Scott v. Harris set the standard that a police officer’s use of deadly force to terminate a high-speed chase is presumptively reasonable, even if it is likely to kill or seriously injure the suspect. The implications of this are troubling: twenty-eight percent of people killed in police pursuits each year are innocent bystanders, and vehicle accidents are the most common cause of police deaths. Scott was wrongly decided because it departed from the case-by-case reasonableness standard upon which the Supreme Court previously relied for excessive force cases, failed to consider the potential risk that these chases added to the public, …

Note – Rico’S Extraterritoriality After Morrison: Where Should We Go From Here?, Anneka Huntley

UC Law Journal

In 2010 the Supreme Court addressed the extraterritorial application of U.S. securities law in Morrison v. National Australia Bank Ltd., and held that U.S. laws could not be applied to stocks bought and sold on foreign markets. The holding also invalidated the “conduct and effects” test that lower courts had used to assess the extraterritoriality of securities laws, and mandated that courts look to a statute’s focus to determine if Congress intended the law to apply abroad. Prior to Morrison, courts had also used the conduct and effects test to assess the extraterritorial application of the Racketeering Influenced and Corrupt …

Fostering Transparency: A Preliminary Review Of “Policy” Governing Psychotropic Medications In Foster Care, Kathleen Noonan, Dorothy Miller

UC Law Journal

In light of increasing national attention on the high rates of prescribing psychotropic medication for children in foster care, and related new federal requirements for state reporting to the federal government, we analyzed child welfare agency laws, policies, and regulations in sixteen states. Our analysis revealed that states with monitoring policies in place tend to use informal guidance or underdeveloped policy statements that were likely not subject to public notice or comment, and afforded little, if any, opportunity for redress. This Article argues that, given the new federal requirements related to psychotropic medications and children in foster care, the state …

An Insight Into The Apparel Industry’S Patent Troll Problem, Ashli Weiss

UC Law Science and Technology Journal

Patent trolls have increasingly targeted the end users of patent-encumbered technology rather than suing the companies that created the allegedly infringing products themselves. Apparel companies provide a useful example of the predicament faced by a variety of similarly situated, nontechnology-oriented companies targeted by troll litigation. As high-profile end users of a variety of commercial technologies, apparel companies have proven to be popular targets for troll litigation. This article examines the apparel industry’s patent troll problem through the lens of historical context, in order to describe how nontechnology companies expose themselves to liability by becoming dependent on third-party technology. It then …

The Conflict Between The Fda’S Pre-Launch Activities Importation Request Program And The Hatch-Waxman Act, Alex Cheng, Matthew Avery

UC Law Science and Technology Journal

In 2008, the Food and Drug Administration (FDA) implemented the Pre- Launch Activities Importation Request (PLAIR) program. The FDA exercises its enforcement discretion under the guise of the PLAIR program to permit drug manufacturers to import unapproved drugs into the United States so the manufacturers can expedite their commercial launches when they finally receive official FDA approval. But the ability to import unapproved finished drug products into the United States ahead of anticipated FDA approval conflicts with certain provisions of the Hatch-Waxman Act that permit brand-name companies to use permanent injunctions to prevent the importation of generic equivalents of their …

Negotiating Bribery: Toward Increased Transparency, Consistency, And Fairness In Pretrial Bargaining Under The Foreign Corrupt Practices Act, Peter Reilly

UC Law Business Journal

From business to individual, almost anyone can be the subject to investigation for possible violations of the U.S. Foreign Corrupt Practices Act. If a party is indicted, the case may be resolved through an ADR vehicle currently being employed by the DOJ: The Deferred Prosecution Agreement (“DPA”) or the Non-Prosecution Agreement (“NPA”).

The use of such agreements is not guaranteed as an alternative to trial; rather they are awarded to defendants through negotiations with the DOJ. But here is the problem: This negotiation between prosecutor and accused can sometimes be unfair to the point where any “bargaining” taking place is …

Rational Financial Meltdowns, Manuel A. Utset

UC Law Business Journal

This article focuses on the following question: how can a group of rational, and often very sophisticated, financial actors cause financial meltdowns, in the regular course of business? There is no doubt much we still need to learn about irrational financial meltdowns, but more likely than not, cognitive shortcomings only make matters worse: they exacerbate the type of behavior that can lead even super-rational actors to cause financial meltdowns.

Microlending: State Regulatory Reforms To Promote Economic And Employment Growth In California, Deanna Chea

UC Law Business Journal

Microlending has earned a great deal of acclaim for alleviating poverty and facilitating self-sufficiency among entrepreneur recipients of microloans, particularly in developing countries. The microlending structure has been repeatedly replicated and tailored to successfully meet each community’s unique needs. As one of the most socioeconomically, geographically, and culturally diverse states in the United States, California can reap the benefits of microlending with careful development of proper infrastructure. This note examines the history of microlending, provides and overview of the current economic state of California, and proposes a number of state legislative and regulatory reforms to create a sustainable and robust …

Bringing Dark Money Into The Light: 501(C)(4) Organizations, Gift Tax, And Disclosure, Tyler J. Kassner

UC Law Business Journal

Political speech funneled through 501(c)(4) organizations and funded by anonymous contributions is not just legal: It’s rampant. Could applying the gift tax to 501(c)(4) contributions resolve a legal grey area while curbing this anonymous political speech? Legally, expanding the gift tax would appear to be a legitimate option. It would be consistent with prior tax expansions and it is not abnormal for tax incentives to influence taxpayer behavior. The problem is not whether Congress could expand the tax, but whether it should. Applying the gift tax to 501(c)(4) contributions may very well curtail anonymous spending by c4s, but it would …

Choice Of Procedural Law In International Commercial Arbitration: Providing "Proper Notice" To A Foreign Party To Ensure That The Arbitral Award Can Be Enforced, Tiffany Ng

UC Law Business Journal

In recent years, the Federal Circuit has made an effort to rein in excessive or unfounded patent damages awards. In Uniloc v. Microsoft, the Federal Circuit granted a motion for retrial on the issue of damages, rejecting the validity of plaintiff’s damages expert testimony. This note advocates a broad reading of Uniloc and encourages trial courts to take a greater role in providing juries with sound methodology for assessing damages. Specifically, this article encourages the use of court-appointed damages experts to restore predictability in the U.S. patent system.

What Counts As A Domestic Transaction Anymore: The Second Circuit And Other Lower Courts' Struggles In Interpreting The Supreme Court's Intent In Morrison V. National Australia Bank When Dealing With Derivative Securities Transactions, Jacob True

UC Law Business Journal

The U.S. Supreme Court recently created uncertainty in the over-the-counter derivative securities market with its decision in Morrison v. National Australia Bank Ltd. Courts used to determine if claims involving fraudulent actions effecting securities transaction could be made under U.S. securities law by assessing whether the fraud was conducted or the effects of the fraud was felt within the United States, but after Morrison that changed. Now, a securities transaction must be made on a “domestic exchange” or be a transaction occurring within the United States. The Supreme Court did not thoroughly define what constitutes a “transaction occurring within the …

Mental Health Parity: The Patient Protection And Affordable Care Act And The Parity Definition Implications, Suann Kessler

UC Law Science and Technology Journal

At least twenty-eight percent of American adults suffer from a mental or addictive disorder. However, even today, health insurance coverage for mental health services differs drastically from that of other medical services. Nonetheless, although it has yet to achieve parity with other medical services, health insurance coverage for mental health services has improved over time. Because the recent enactment of the Patient Protection and Affordable Care Act (“PPACA”) appears to have filled the parity gaps left by the Mental Health Parity and Addiction Equity Act of 2008, many claim that mental health parity has finally been achieved. While the PPACA …

The Uncertain Scope Of Revised Article 9'S Statutory Prohibition Of Exculpatory Breach Of Peace Clauses, Michael Korybut

UC Law Business Journal

What length may an agent for a secured lender with a lien on a debtor’s personal property go to in order to repossess the debtor property to satisfy the debt? Wombles Charters, a 1990 New York case decided under Article 9 of the Uniform Commercial Code, was the first in a trilogy to condone the use of exculpatory repossession clauses allowing actions that would otherwise amounted to a breach of the peace. In 2001, Article 9 received a makeover that many presumed would invalidate Wombles carve outs yet, there is virtually no case law on the subject. This has led …

The Failure Of Mitigation?, Robert J. Smith

UC Law Journal

A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders. For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma? The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime. This Article begins to fill the …

Unbranding Confrontation As Only A Trial Right, Shaakirrah R. Sanders

UC Law Journal

This Article challenges the oft-cited but unpersuasive rule that the Sixth Amendment Confrontation Clause only applies at the trial stage of a “criminal prosecution.” I examine the most likely interpretation of the term “criminal prosecution” at the time of the Founding and conclude that the term would have included felony sentencing. I explore the Counsel Clause’s early rejection of the “trial-right-only” rule and the recent erosion of the “trial-right-only” rule with regard to the Jury Trial Clause in Alleyne v. United States. I advocate for eliminating the trial-right-only theory of the Confrontation Clause to allow cross-examination of testimonial statements that …

Note – “Between” A Rock And A Hard Place: Martin Marietta V. Vulcan And The Rise Of The Backdoor Standstill, Sasha S. Hahn

UC Law Journal

A recent trend has created an anomaly in interpreting confidentiality agreements in the context of merger negotiations. After the Canadian decision in Certicom v. Research in Motion and the Delaware Court of Chancery and Delaware Supreme Court’s decisions in Martin Marietta Materials, Inc. v. Vulcan Materials Co., standstill agreements may be read into standard confidentiality agreements without being separately negotiated or intended. These decisions have created the force of entire agreements out of the words “between” and “legally required.” This Note argues for a contextualist, rather than traditionalist, approach to interpreting these “backdoor” standstills to avoid unintended consequences for parties …

Note – “Please Don’T Stop The Music”: The Need For Fairness In Digital Copyright, Adam Vukovic

UC Law Journal

Each month, over 100 million Americans listen to and discover music through Internet radio stations. Section 114 of the Copyright Act requires Internet radio stations, as providers of digital radio transmissions, to pay performance royalties. Due to an outdated royalty determination method, these Internet radio stations regularly spend over half of their revenue to secure royalties for the songs streamed through their websites—far more than paid by digital radio stations. The Internet Radio Fairness Act sought to equalize the royalty rates paid by Internet radio services and their digital counterparts. Unfortunately, due to fierce lobbying, the bill has been abandoned …

Note – Arbitration At The Tipping Point: Challenging Claim-Suppressing Arbitration Clauses, James Parrinello

UC Law Journal

If you have entered into a contract for goods or services with a corporation recently, then chances are that an arbitration clause governs any potential legal claims you may have arising from that contractual relationship. In theory, arbitration is a cheap and efficient way to assert claims and allows a claimant to avoid the backlogged court system. For consumers, however, arbitration has morphed into a dispute resolution system that is no longer a fair alternative to the courts. Two recent Supreme Court decisions have validated corporations’ use of the inequitable, claim-suppressing mechanism known as a class action arbitration waiver. The …

The “Too Big To Jail” Effect And The Impact On The Justice Department’S Corporate Charging Policy, Court E. Golumbic, Albert D. Lichy

UC Law Journal

In the wake of the 2008 financial crisis, the failure of the Department of Justice (“Justice Department” or “DOJ”) to bring criminal charges against any financial institutions prompted critics to question whether the DOJ maintained a policy that certain corporations are “too big to jail.” The criticism piqued after the DOJ announced that it had entered into a deferred prosecution agreement (“DPA”) with HSBC to resolve a massive money laundering and government sanctions investigation. This wave of criticism is the backdrop for what the Authors call the “too big to jail” effect—two related developments, each of which has the potential …

Completing The Energy Innovation Cycle: The View From The Public Utility Commission, Jonas J. Monast, Sarah K. Adair

UC Law Journal

Achieving widespread adoption of innovative electricity generation technologies involves a complex system of research, development, demonstration, and deployment, with each phase then informing future developments. Despite a number of non-regulatory programs at the federal level to support this process, the innovation premium—the increased cost and technology risk often associated with innovative generation technologies—creates hurdles in the state public utility commission (“PUC”) process. These state level regulatory hurdles have the potential to frustrate federal energy goals and prevent the learning process that is a critical component to technology innovation. This Article explores how and why innovative energy technologies face challenges in …

Note – Drill Here Not There: Petroleum Leasing And Conservation In Alaska’S National Petroleum Reserve, Joel Aurora

UC Law Journal

This Note analyzes the Department of the Interior’s recent decision to close off several million acres of the National Petroleum Reserve-Alaska (“NPR-A” or “Reserve”) from oil and gas leasing while allowing petroleum development on discrete areas of the Reserve. After discussing the Reserve’s history, this Note examines the Alaska National Interest Land Conservation Act of 1980 and its relevance to the NPR-A, and analyzes the petroleum industry’s potential legal arguments against the Interior’s decision. This Note also argues that the Department of the Interior’s decision is in accordance with its administrative powers because the Secretary’s decision should not be considered …

Incompetent But Deportable: The Case For A Right To Mental Competence In Removal Proceedings, Fatma E. Marouf

UC Law Journal

Important strides are currently being made toward increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found mentally incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding such as removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial …

Neuro-Voir Dire And The Architecture Of Bias, Dov Fox

UC Law Journal

Courts and commentators routinely assume that “bias” on the jury encompasses any source of influence upon jurors that does not come directly from the evidence presented at trial. This sweeping conception of juror bias is flawed because it fails to distinguish the prejudices and affinities that infect jury decisionmaking from the experiences and perspectives that enrich it. This Article uses a thought experiment informed by the neuroscience of bias to illuminate the complexity of juror influences that go by the name of bias. I distinguish four distinct categories of juror influence: personal interests, community interests, case-specific beliefs, and case-general beliefs. …

Preying On The Graying: A Statutory Presumption To Prosecute Elder Financial Exploitation, Andrew Jay Mcclurg

UC Law Journal

With seventy-eight million baby boomers in or nearing retirement, elder financial exploitation has been labeled the “Crime of the 21st Century,” yet little has been done to address the problem. While states and the federal government have passed hundreds of laws protecting children based on the assumption they are vulnerable and unable to protect themselves, older at-risk adults have been comparatively ignored despite extensive research showing they too are vulnerable. A substantial roadblock to prosecuting elder financial predators is the inability to prove that the financial transfers at issue were the result of exploitation rather than legitimate transactions. Many victims …