Law Commons^™

Examining The Americans With Disabilities Act's Reassignment Provision Through An Equal Protection Lens, Danielle Bogaards

UC Law Constitutional Quarterly

Disabled employees were given equal protection rights when Congress acted under Section 5 of the Fourteenth Amendment to enact the Americans with Disabilities Act ("ADA"). This note begins by analyzing the ADA's reassignment provision, which is triggered when a current employee becomes disabled and can no longer perform the essential tasks of his or her current position. The ADA considers various forms of accommodations the employer may provide; yet circuit courts are split when faced with application of the ADA's reassignment provision because it is often used as a last resort before termination. More specifically, when an employer has a …

Whaling In Circles: The Makahs, The International Whaling Commission, And Aboriginal Subsistence Whaling, Monder Khoury

UC Law Journal

In Anderson v. Evans, the Ninth Circuit held that the International Whaling Commission (“IWC”) Schedule’s approval of a quota to hunt whales for the Native American Makah Tribe (“Makahs”) violated the Marine Mammal Protection Act. The implications of this holding were troubling: despite the U.S. government and the IWC approving, on domestic and international levels, the Makahs’ whaling proposal in the 1990s, the Makahs were still unable to hunt whales legally. The Makahs’ right to whale stemmed from the 1855 Neah Bay Treaty, an agreement between the Makahs and the U.S. government in which the government promised the Makahs the …

A Message From The Editor-In-Chief, Lesley Rae Hamilton

UC Law Journal

It is a dynamic time for the legal profession. Law firms, big and small, are innovating the way they run their businesses and deliver their services, resulting in positive changes for both clients and attorneys. On the one hand, firms are increasingly placing emphasis on delivering value to clients at a faster rate and for lower fees than ever before through adjustments to the types of services they offer and the manner in which they deliver them. Lawyers, also, are benefitting as legal employers increasingly offer innovative approaches to schedule flexibility, discretionary billing rates, and attorney entrepreneurialism to appeal to …

Databasing Delinquency, Kevin Lapp

UC Law Journal

Technological advances in recent decades have enabled an unprecedented level of surveillance by the government and permitted law enforcement to gather, store, and retrieve in real time enormous amounts of data. After nearly a century of limited record-making and enhanced confidentiality regarding juveniles, these data collection practices have quickly expanded to include youth. This Article uncovers the vast extent of modern data collection and distribution about juveniles by the criminal justice system from juvenile sex offender registration and their inclusion in gang and DNA databases, to schools turned into mandated law enforcement informants, to police and courts increasingly sharing juvenile …

The Problem Of Reverse Payments In The Pharmaceutical Industry Following Actavis, Traci Aoki

UC Law Journal

Reverse payments are payments that are made as a component of a patent infringement settlement, between a brand-name pharmaceutical company to a competitor who is attempting to market a generic version of the patented brand-name drug. The patentee not only drops its patent infringement suit against the generic manufacturer, but also compensates this alleged infringer. Reverse payment settlements raise antitrust concerns because they suggest that the generic manufacturer could have proved the brand-name’s patent either invalid or non-infringed, and thus entered the marketplace to provide consumers with lower priced generic drugs, if they had continued with the litigation. This also …

Disruptive Innovation: New Models Of Legal Practice, Joan C. Williams, Aaron Platt, Jessica Lee

UC Law Journal

For decades, lawyers have been complaining that they hate working at law firms, and clients have expressed increasing frustration with high legal fees. But complaining is as far as either group went, until recently. This is perhaps the first attempt at a comprehensive review of a wide variety of new business organizations that have arisen in recent years to remedy the market’s failure to deliver business organizations responsive to the complaints of either lawyers or of clients. The “New Models of Legal Practice” described here typically offer a new value proposition for lawyers and clients. For lawyers, New Models offer …

Resurrecting Health Care Rate Regulation, Erin C. Fuse Brown

UC Law Journal

Our excess health care spending in the United States is driven largely by our high health care prices. Our prices are so high because they are undisciplined by market forces, in a health care system rife with market failures, which include information asymmetries, noncompetitive levels of provider market concentration, moral hazard created by health insurance, multiple principal-agent relationships with misaligned incentives, and externalities from unwarranted price variation and discrimination. These health care market failures invite a regulatory solution. An array of legal and policy solutions are typically advanced to control our health care prices and spending, including: (1) market solutions …

Overcoming The Public-Private Divide In Privacy Analogies, Victoria Schwartz

UC Law Journal

When a photographer takes unauthorized aerial photographs of a company’s plant, the legal framework under which courts evaluate the case, as well as its likely outcome, depends on whether the photographer was hired by a private actor or the government. If a competitor hired the photographer, the aerial photography may constitute improper trade secret misappropriation. If, however, the government hired the photographer, the aerial photography would not violate the Fourth Amendment. This dichotomy illustrates a public-private divide in which privacy violations by the government are treated differently from privacy violations by the private sector. Despite this divide, some courts have …

Institutionalized Disruption: The Rise Of The Reformer Startup, Abraham J.B. Cable

UC Law Business Journal

This essay emerges from a joint symposium of the Hastings Business Law Journal and the Hastings Science and Technology Law Journal entitled “Regulating the Disruption Economy: Tech Startups as Regulatory Reformers.” The symposium featured panels on virtual currency, crowdfunding, and the sharing economy.

Drawing from the symposium, this essay considers why startups are increasingly taking up the mantle of regulatory reform, how they are achieving their successes, and whether this is a positive development for our political economy. It tentatively proposes that: (1) features of the current venture capitalist market and startup ecosystem, rather than the pace of technological advancement, …

Crowdfunding Delusions, Reza Dibadj

UC Law Business Journal

Beyond all the hype surrounding crowdfunding there is a curious incongruity. On the one hand, there exist apparently successful crowdfunding sites; on the other hand, more than three years after the Jumpstart Our Business Act (“JOBS Act”) mandated an equity crowdfunding exception, we are still waiting for final regulations from the Securities and Exchange Commission.

This essay explores this irony, arguing that existing crowdfunding sites carefully manage around a fundamental ambiguity in the securities laws—a surprisingly fuzzy definition of what a “security” is. It then shifts to understanding the existing regulatory framework: the federal crowdfunding statute and proposed rules, as …

Employee Perks In Silicon Valley: Technology Companies Lead The “Arms Race” As Corporate Law Trails In Representing Shareholder Interests, Thuy Nguyen

UC Law Business Journal

Within the last decade, Silicon Valley technology companies have increasingly engaged in a practice of providing nontraditional perks to employees, in what has been characterized as an “arms race” to attract engineering talent. As this practice expands throughout Silicon Valley, so do the costs associated with providing these perks. While companies view the practice as a tool to recruit talent, boost productivity, and increase efficiency, the IRS’s renewed interest in scrutinizing the tax laws casts doubt on whether these stated objectives would remain robust in the future.

This Note focuses on the practice of providing employee perks from a shareholder …

Merit-Based Sentencing Reductions: Moving Forward On Specifics, And Some Critique Of The New Model Penal Code, Rory K. Little

UC Law Journal

In the Essay that follows, Michael Santos tells a remarkable story. Arrested at age twenty-three, Santos served twenty-six years in the federal prison system. While in prison, Santos published articles and books, and earned college and master’s degrees, despite what he describes as affirmatively obstructionist decisions by “corrections” personnel. Immediately after his release in 2013, Santos began lecturing at a respected state university. Today, he has a website; course materials for persons facing lengthy prison sentences; scores of supporters and mentors; and the charisma and character to hold a law symposium audience spellbound for every minute of his thirty-minute presentation. …

A Message From The Editor-In-Chief, Emily Goldberg Knox

UC Law Journal

Sixty-six years after the founding of the Hastings Law Journal, much has changed. The times of physically turning a page are all but gone. Now we prefer the swipe of a finger or the click of a mouse. It is a challenge for long-standing institutions to keep up with the times. Inertia is powerful—it is far easier to watch things change than change with the times. Nevertheless, this year, Hastings Law Journal met the challenge head on. In addition to overhauling our website, we launched SCOCABlog, a blog dedicated to covering the Supreme Court of California. Launching a blog, I …

Keynote Address: Federal Sentencing Reform Ten Years After United States V. Booker, Charles R. Breyer Hon.

UC Law Journal

Hon. Charles R. Breyer gave the keynote address for Hastings Law Journal’s Federal Sentencing Reform Symposium held on February 13, 2015. Professor Rory Little provided the introduction.

Incentivizing Excellence: A Suggestion For Merit-Based Reductions From A Twenty-Six-Year Federal Prison Insider, Michael Santos

UC Law Journal

America’s prison population has soared since the early 1970s, when a commitment to mass incarceration began. We now incarcerate more people than any other nation. Further, recidivism rates show that the longer we expose people to “corrections,” the less likely those people become to emerge as law-abiding, contributing citizens. As Justice Kennedy has said, our nation incarcerates far too many people, and they serve sentences that are far too long. We can improve the outcomes of our nation’s prison system by incentivizing a pursuit of excellence, creating mechanisms through which people in prison can earn freedom in gradually increasing levels …

Constitutional Law, Moral Judgment, And The Supreme Court As Super-Legislature, Brian Leiter

UC Law Journal

I propose to defend and explore three claims in this Essay. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the Supreme Court. There, the Court operates as a kind of super-legislature, albeit one with limited jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues that are brought before it; and second, the Court is constrained, to some extent, by its past decisions and by constitutional and legislative texts. The problem, however, is that those constraints underdetermine …

A Response To Professor Brian Leiter, Joseph R. Grodin

UC Law Journal

The editors of Hastings Law Journal have invited me to comment on Professor Brian Leiter’s provocative essay, Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature, and I have undertaken to do so, not so much because I disagree with what he says—in fact, I agree with much of his thesis—but because what he says points to questions which deserve further consideration. . .

New York City Rules! Regulatory Models For Environmental And Public Health, Jason J. Czarnezki

UC Law Journal

Scholars have become increasingly interested in facilitating improvement in environmental and public health at the local level. Over the last few years, former New York City Mayor Michael Bloomberg and the New York City Council have proposed and adopted numerous environmental and public health initiatives, providing a useful case study for analyzing the development and success (or failure) of various regulatory tools, and offering larger lessons about regulation that can be extrapolated to other substantive areas. This Article, first, seeks to categorize and evaluate these “New York Rules,” creating a new taxonomy to understand different types of regulation. These “New …

In And Out—Contract Doctrines In Action, Danielle Kie Hart

UC Law Journal

This Article was written to test a hypothesis, namely, that it is easy to get into a contract but very difficult to get out of one. After reviewing case law from the Seventh and Ninth Circuits, contract law in action suggests that reality may be slightly different from theory. That is, the data from the cases show that it may not be so easy to get into a contract in practice, but it is extremely difficult to get out of one. Pacta sunt servanda seems to be alive and well in twenty-first century contract law. Perhaps the more significant finding …

Unmasking Mullane: Due Process, Common Trust Funds, And The Class Action Wars, John Leubsdorf

UC Law Journal

Although Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) is a classic Civil Procedure case, its history has never before been written. This Article reveals that history, traced among other sources, in the papers of New York’s Governor Herbert Lehman, whose misgivings did not prevent his signing the legislation that the Supreme Court struck down, and of Justice Robert Jackson, who wrote the opinion striking it down. More or less behind the scenes, two struggles were going on. One involved and prefigured all of the tensions of the modern class action: conflicts within the class, the …

Appealing To Reason-Able Expectations Of Privacy: Increasing Appellate Review Under Ecpa, Andrew Tyler Ohlert

UC Law Journal

The Snowden revelations of 2013 sparked widespread, public discussion about the amount of government surveillance performed on American citizens under the Foreign Intelligence Surveillance Act. This dialogue often sidesteps the Electronic Communications Privacy Act, however, which is the primary statute that governs the government’s ability to obtain the electronic communications of everyday citizens. The vast majority of requests for information under ECPA are pursued ex parte, and often without notice to a targeted individual that the government has obtained her information. This secrecy regime leaves targeted individuals unable to oppose the government or appeal adverse decisions. Moreover, if a magistrate …

Piercing The Privacy Veil: Toward A Saner Balancing Of Privacy And Health In Cases Of Severe Mental Illness, Jorgio Castro

UC Law Journal

On November 19, 2013, Virginia state senator and former candidate for governor Robert Creigh Deeds suffered a high-profile attack from his son, who had been diagnosed with schizophrenia, resulting in permanent injuries to himself and his son’s self-inflicted death. On June 16, 2015, Senator Deeds addressed Congress to highlight one of the biggest challenges to providing adequate intervention and support for his son—the HIPAA Privacy Rule’s restriction on the release of protected health information to family caretakers. Senator Deeds’s high-profile story emerged as a national indication of a serious problem: the immense difficulty experienced by families trying to obtain critical …

Federal Sentencing In The States: Some Thoughts On Federal Grants And State Imprisonment, John F. Pfaff

UC Law Journal

As the movement to reduce the outsized scale of U.S. incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly ninety percent of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control. In this Article, I examine one way in which the federal government might be driving up state incarceration rates, and thus one way it can …

The Intersection Of Patents And Trade Secrets, Michael R. Mcgurk, Jia W. Lu

UC Law Science and Technology Journal

An old retort in politics is “You’re either a Democrat or a Republican!” Likewise, the counterpart retort in Intellectual Property for companies back in the day was “You’re either a patent company or a trade secret company!” Patents and trade secrets are the only two forms of intellectual property that protect information—patents protect patentable (innovation) information, while trade secrets can protect patentable information and any other information providing economic value to the holder. In fact, it is not uncommon for patents and trade secrets to protect the same information. However, the bodies of laws governing each are far from similar. …

Trolling For An Npe Solution, Jared A. Smith, Nicholas R. Transier

UC Law Science and Technology Journal

An all-out war is being waged against patent trolls in every corner of the government. But why? To answer that question, this note considers a wide range of laws, rules, decisions, and other measures being offered up as a solution to the “troll problem.” In doing so, this note seeks to identify the potential issues with various proposed “solutions,” including their impact not only on patent trolls, but also, arguably more importantly, on the patent system as a whole. Finally, this note concludes with a set of recommendations meant to combat the most insidious patent trolling tactics, while protecting the …

Developing Drop Discipline: Training And Testing Operators Of Small Unmanned Aircraft Systems, Henry H. Perritt Jr., Eliot O. Sprague

UC Law Science and Technology Journal

This is the third in a series of articles about drones by the co-authors. The first, Drones, introduces the subject and explores the technologies that makes microdrones so useful and so inexpensive. It provides an overview of technological, economic, political, and regulatory issues that the second article and this one explore more deeply. The second article, Law Abiding Drones, argues that the character of microdrones justifies simplified regulation as consumer products, with automated flight control and safety systems that make flying them easy, compared with airplanes and helicopters. This article focuses on the question of operator qualifications. It does not …

Activist Compensation Of Board Nominees And The Middle Ground Response, Adam Prestidge

UC Law Business Journal

Shareholder activism has taken an increasingly high-profile and polarizing role in investing and corporate governance. Moves by shareholder activists, and the policy behind those moves, constantly appear in corporate headlines. One of shareholder activists' primary methods of enacting changes in companies is to nominate directors to the board, and often those director nominees are highly compensated by the shareholder activist itself. Some in the corporate world oppose this practice, arguing that it creates a significant conflict of interest and can damage the company in the short term, while others argue that the practice is a necessary tool for investors that …

A Look At Tradekey: Shifting Policing Burdens From Trademark Owners To Online Marketplaces, Ashley Bumatay

UC Law Business Journal

This note addresses contributory counterfeiting within online marketplaces. Contributory counterfeiting arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for the direct counterfeiting carried out by a third party. This note argues that online marketplaces should be required to take a more active role in combating counterfeiting through their platforms. This note proceeds in five parts. Part I serves as an introduction to the issue. Part II provides background information regarding trademark counterfeiting and gives an overview of the case law regarding contributory counterfeiting in online marketplaces. Part III looks at the implications of the TradeKey …

Evading The Transparency Tragedy: The Legal Enforcement Of Corporate Sustainability Reporting, Chloe Ghoogassian

UC Law Business Journal

Although sustainability reporting is a mechanism for improving labor and human rights practices in global supply chains, it has had limited effects to date because of its voluntary nature. Embracing a uniform reporting standard and making companies legally accountable for the veracity and completeness of their disclosures could enhance the efficacy of sustainability reporting. Generally, this Note explores how such a system could be structured.

Part II of this note describes the Global Reporting Initiative ("GRI") as a case study of sustainability reporting and some of its shortcomings. Specifically, Part II will address how the voluntary nature of GRI's Reporting …

The Delaware Carve-Out's Carve: Examining And Repairing Slusa's State Law Exception, Kenneth Hsu

UC Law Business Journal

The "Delaware carve-out” is a carefully written savings clause that preserves state law claims that would otherwise be dismissible under SLUSA preclusion. The carve-out's broad statutory language, however, does not provide much clarity for parties litigating its applicability. While three circuit level opinions have addressed particular portions of the carve-out's text, none have offered a controlling understanding of the statute. The carve-out's precise scope instead remains largely defined by an assortment of lower court decisions relying on different interpretations of the statutory language and of related case law. Amid such uncertainty, this note seeks to discern some clarity to the …