Hastings Law Journal最新文献

{"title":"'Covenants Not to Sue' Provide Less Immunity in a Post-Medimmune World","authors":"Edo B. Royker","doi":"10.2139/ssrn.1478198","DOIUrl":"https://doi.org/10.2139/ssrn.1478198","url":null,"abstract":"This Note addresses the impact of the totality of circumstances test, as now adopted by the Federal Circuit, on covenants not to sue in the Declaratory Judgment (DJ) context. Under the old reasonable apprehension test, promises not to sue were given greater weight than under the new totality of the circumstances test. Part I of this Note addresses the new totality of the circumstances test under Medimmune and Sandisk. Part II of this Note compares the application of promises not to sue in pre-Medimmune and post-Medimmune decisions. Although the current case law does not indicate an extreme change from the pre-Medimmune decisions, the dicta in these cases indicates that a more extreme change may be forthcoming. Finally, Part III responds to a number of scholarly articles that have indicated disapproval of the Federal Circuit’s totality of the circumstances test by applying twofold analysis, taking into account exposed revenue and burdensome litigation costs, to four potential bargaining scenarios between hypothetical licensors and licensees.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2009-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68185726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Heller, High Water(mark)? Lower courts and the new right to keep and bear arms","authors":"Brannon P. Denning, G. Reynolds","doi":"10.2139/SSRN.1455989","DOIUrl":"https://doi.org/10.2139/SSRN.1455989","url":null,"abstract":"This paper examines the post-Heller Second Amendment case law in the lower courts and concludes that although federal courts are not rushing to overturn gun laws under the Second Amendment, they are moving more rapidly to implement Heller than under previous 'revolutionary' decisions such as U.S. v. Lopez. There is also some evidence that state courts are taking the right to arms more seriously, with the additional possibility that the new federal right to arms may boost interest in the numerous state right-to-arms provisions. Finally, by characterizing gun ownership as a protected individual right, Heller has served to 'renormalize' firearms ownership, a change in legal philosophy that may be as significant as any doctrinal shifts.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2009-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183208","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Procedural Annihilation of Structural Rights","authors":"Steven G. Gey","doi":"10.2139/SSRN.1429186","DOIUrl":"https://doi.org/10.2139/SSRN.1429186","url":null,"abstract":"For several years the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. These obstacles take several forms, including restrictions on standing, restrictions on raising facial challenges to unconstitutional statutes, and an increasingly unwillingness to allow federal courts to infer remedies when necessary to enforce federal statutory or constitutional claims. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called \"structural rights.\" The term \"structural rights\" describes constitutional provisions that are designed to protect the basic nature of democratic government. These provisions constrain the power of the elected branches of government, preserve citizen autonomy, and otherwise ensure that those who use the democratic process to achieve immediate political power do not perpetuate that power in ways that undermine the democratic structure of government in the long term. The negative effects on structural rights of the Court's recent limitations on judicial authority is important because the usual justification the Court gives for these limitations involves the need for judicial restraint and deference to the elected branches of government. This is essentially a claim that the exercise of judicial authority in these circumstances is antidemocratic. The central thesis of this article is that judicial restraint in the face of structural rights claims has exactly the opposite characteristic because in a case raising structural rights claims the current government is disempowered from doing certain things precisely to preserve the democratic structure of government. Deference to the elected branches of government in the name of democracy is therefore uncalled for if the elected branches of government are violating structural rights because those violations actually undermine democracy. Thus, the article concludes somewhat paradoxically that courts must be given the authority to enforce structural rights against the violations of those rights by the elected branches not in spite of democracy, but rather because of it.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2009-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68179986","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications","authors":"J. Marceau","doi":"10.2139/SSRN.1407682","DOIUrl":"https://doi.org/10.2139/SSRN.1407682","url":null,"abstract":"Countless articles and judicial opinions have been devoted to the task of deciphering the scope and application of the limitations on habeas corpus relief announced in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Over the past ten years courts and scholars have developed an intricate framework of analysis for nearly every sub-section of § 2254. The decade-long process of interpretation and commentary has been characterized by questions of statutory meaning and federalism that appear to be as irresolvable for courts as they are intriguing to academics. But in the rush to sort out the minutia of AEDPA, the hallmarks of our legal system, basic due process and constitutional supremacy, have been overlooked. This Article aims to re-focus the debate. The application and discussion of AEDPA’s limitations on relief has devolved into a bitter argument over the meaning of a statute which lacks a discoverable meaning, much less an obvious or plain meaning. It is statutory esotericism or statutory obfuscation much more than it is statutory interpretation. The discussion has become so technical and specialized, not to mention politically polarized, that we are at risk of permanently overshadowing the historical and constitutional underpinnings of the Great Writ. The goal of this Article is to recast and simplify the habeas debate and achieve some much needed common ground. The thesis is simple: where the state post-conviction process does not provide a meaningful corrective process such that federal constitutional issues are not “fully and fairly” adjudicated, it is necessary for the federal courts to review the federal claims de novo. This modest procedural proposal is compelled by due process through a celebrated line of cases, and yet in the frenzy to interpret § 2254 – in working out all of the (e)(2)’s and the (d)(1)’s – we have forgotten due process. It is time to return to it. More than a century ago in Frank v. Magnum and Moore v. Dempsey, the Court recognized the critical role that federal habeas review must play in ensuring that basic constitutional criminal procedure rights were adjudicated in a minimally “full and fair” manner by state courts. To be sure this fair-process check on state adjudications was of minimal, even trivial, significance during the Brown v. Allen era when federal habeas was viewed by the Court as providing a virtually unchecked opportunity to rework the underlying merits of the state adjudication. But the limitations on federal habeas review born during the Rehnquist and Burger Courts and enhanced through the enactment of the AEDPA compel a reasoned revisiting of due process in this context. After surveying the law defining the minimum standards of due process in the context of adjudicating constitutional criminal procedure rights – the “full and fair” mandate – this paper recommends a reading of §2254 that is both faithful to due process and consistent with the goals of the AEDPA.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2009-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68176648","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What is Specific about Specific Restitution","authors":"C. Murphy","doi":"10.2139/SSRN.1329099","DOIUrl":"https://doi.org/10.2139/SSRN.1329099","url":null,"abstract":"An important functional difference among restitutionary remedies is between giving a plaintiff the monetary value of the defendant's unjust enrichment or giving the plaintiff an identifiable asset that constitutes the defendant's unjust enrichment. This difference commonly is labeled by scholars to be a difference between a money judgment and \"specific restitution.\" This terminology obscures important concepts, such as that a plaintiff's asset-based remedy might be for a fund of money or that recovery of an asset might not constitute \"specific\" relief-that is, the plaintiff might not get the thing to which the plaintiff originally was entitled. In many of its uses by scholars, there is nothing \"specific\" about specific restitution. This article situates the term specific restitution within the larger context of how the term \"specific\" is used in the law, and it examines how scholars and courts have used \"specific restitution.\" Finally, the article turns to the American Law Institute's ongoing project to produce a Restatement (Third) of Restitution and Unjust Enrichment. The article recommends that the Restatement dispense with the term \"specific restitution\" and rely on the more accurate term \"asset-based restitution.\"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2009-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68163767","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Replacing the Estate Tax with a Re-Imagined Accessions Tax","authors":"Joseph M. Dodge","doi":"10.2139/SSRN.1285515","DOIUrl":"https://doi.org/10.2139/SSRN.1285515","url":null,"abstract":"This article proposes replacing the federal estate and gift tax system with an accessions tax. An accessions tax is a tax, at progressive rates, on the aggregate lifetime gratuitous receipts of an individual in excess of a specified exemption. The main thesis of this article is that an accessions tax is not simply a reverse image of the current estate tax system, but is significantly different both in purpose and effect. An accessions tax should be an easier pill to swallow than the estate tax, because it is a tax on the unearned income (accessions to wealth) of individuals. In operation, the accessions tax can avoid many of the loopholes in the estate tax, because the accession can occur after the transferor's death. Accessions would be taxed only when realized in cash or assets that are not hard to value. Thus, only trust distributions (as opposed to the acquisition of trust interests) would be taxed. Accordingly, actuarial tables would be irrelevant, and general powers of appointment would be ignored. Taxation of qualified hard-to-value property (such as interests in a closely-held business) would be deferred to conversion to cash (or other event whereby qualification lapses). Accessions by charities and by the spouse of the transferor would be excluded, as would transactions (such as one person purchasing the consumption of another) that do not involve true wealth transfers. Elaborate qualification rules for the spousal and charitable exclusions would not be necessary.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2008-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68158065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Communicating opinion evidence in the forensic identification sciences: Accuracy and impact","authors":"D. McQuiston-Surrett, M. Saks","doi":"10.4324/9781315094205-17","DOIUrl":"https://doi.org/10.4324/9781315094205-17","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2008-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70629828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Principles for Resolving Conflicts between Trade Secrets and the First Amendment","authors":"Pamela Samuelson","doi":"10.2139/SSRN.925056","DOIUrl":"https://doi.org/10.2139/SSRN.925056","url":null,"abstract":"Preliminary and permanent injunctions are routinely granted in trade secret cases without offending the First Amendment, and this is as it should be. In ordinary trade secret cases, injunctions merely require parties to abide by express or implicit agreements they have made, respect the confidences under which they acquired secrets, and refrain from wrongful conduct vis-a-vis the secrets. Occasionally, those who want to disclose trade secrets invoke the First Amendment as a defense to claims of trade secrecy misappropriation. Courts and commentators have taken varying positions on issues pertinent to these defenses, including whether trade secrecy law are categorically immune (or nearly so) from First Amendment scrutiny and whether preliminary injunctions forbidding disclosure of informational secrets should be considered prior restraints on speech. This article offers a set of principles for mediating the tensions that occasionally arise between trade secrets and the First Amendment. Part I seeks to explain why conflicts between trade secrecy law and the First Amendment have thus far been relatively rare. It discusses limiting principles of trade secrecy law that mediate most free-speech-related tensions likely to arise when someone wants to disclose information that another claims as a trade secret. Part II suggests that more conflicts between trade secret and First Amendment interests may occur, in part because of the increased use of mass-market licenses to keep information secret that would otherwise be lawful to acquire and disclose. It considers proposals to strengthen trade secret rights in response to threats to trade secrets posed by the global communications medium of the Internet. The stronger trade secret rights become, the more likely they are to come into conflict with First Amendment interests. Part III criticizes the California Supreme Court's decision in DVD CCA v. Bunner for, among other things, its implicit adoption of the categorical immunity theory and its reliance on DVD CCA's assertion of property rights in its secrets in rejecting Bunner's First Amendment defense. Part IV concludes that even though preliminary injunctions in informational trade secret cases are prior restraints, they are generally justified in ordinary cases. Yet the heavy presumption against prior restraints should apply to cases in which third parties who obtained the secret without wrongdoing seeks to disclose it publicly. Part IV considers a number of other First Amendment due process issues, such as whether the burden of proof in third-party disclosure cases should be higher than in the normal trade secret cases and whether appellate review of constitutionally relevant facts should be de novo when First Amendment defenses have been raised. Part IV proposes several principles to assist courts in grappling with First Amendment defenses in trade secrecy cases.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2006-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.925056","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67886913","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Treaty Obligations and National Law: Emerging Conflicts in International Arbitration","authors":"William W. Park, A. Yanos","doi":"10.1093/law/9780199657131.003.0023","DOIUrl":"https://doi.org/10.1093/law/9780199657131.003.0023","url":null,"abstract":"Pacta sunt servanda 1 Introduction In determining the effect of treaties, the adage pacta sunt servanda (\" agreements are to be kept \") 2 remains a foundation of international law. 3 By contrast, when American courts consider international conventions, the principle barely rises to the rank of analytic starting point.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61410482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reconceptualizing Due Process in Juvenile Justice: Contributions from Law and Social Science","authors":"M. Fondacaro, C. Slobogin, T. Cross","doi":"10.2139/SSRN.786666","DOIUrl":"https://doi.org/10.2139/SSRN.786666","url":null,"abstract":"This article challenges the accepted wisdom, at least since the Supreme Court's decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the adversarial tradition of adult criminal court. Instead, as the Court's administrative procedure cases illustrate, fundamental fairness theory aims at constructing the procedural framework that best promotes fairness, accuracy and efficiency in the setting in question. Social science, and in particular procedural justice research, can play an important role in fashioning this framework, because it can empirically examine various procedural mechanisms, in various settings, with these objectives in mind. To date, procedural justice research suggests that the procedures associated with the adult criminal process are not optimal even in that setting, much less in a regime focused on rehabilitating or punishing children. We propose a performance-based management system for implementing these legal and scientific insights in the juvenile justice context.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2005-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67828075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}