Hastings Law Journal最新文献

{"title":"Parenthood by pure intention: assisted reproduction and the functional approach to parentage.","authors":"Richard F Storrow","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2002-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22328560","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":"Negotiating a policy of prudent science and proactive law in the brave new world of genetic information.","authors":"S Chen","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2001-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22328559","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":"Working Knowledge: Trade Secrets, Restrictive Covenants in Employment, and the Rise of Corporate Intellectual Property, 1800-1920","authors":"Catherine L. Fisk","doi":"10.2139/SSRN.262010","DOIUrl":"https://doi.org/10.2139/SSRN.262010","url":null,"abstract":"The invention of trade secret doctrine in the mid-nineteenth century enabled employers to enjoin revelation of secret information by current or former employees. At the same time, courts expanded the permissible uses of post-employment covenants not to compete so as to prevent dissemination of knowledge. These doctrinal developments thus defined the bounds of permissible entrepreneurship. Equally as significant, these doctrines both generated and reflected a profoundly new perspective on the nature and control of workplace knowledge. This article examines the origins and development of the law of trade secrets and restrictive covenants through study of cases and treatises and through the study of corporate practices. Drawing on the archives of the Du Pont company, this article examines the ways in which a firm that was unusually aware of the value of employee intellectual property used law to achieve its goal of protecting its own secrets while learning new developments from others. The article analyzes how courts, firms, and workers attempted to reconcile the perceived demands of industrialization and the realities of factory work with the ideology of freedom of contract, and the corporate control of ideas with the ideology of free labor. Both the doctrine and the practice reflected the contestability during the nineteenth century of the inalienable attributes of self that lay at the foundation of the discourse of free labor. Drawing the line between what knowledge the firm could own and that which remained the possession of every free person was, in that context, an extraordinarily difficult task. The article concludes that the persistence today of the multifactored, fact-based reasonableness inquiry for restrictive covenants and of standardless, factual tests for the existence and the remedying of the misappropriation of trade secrets is evidence that the value choices at the heart of these legal issues remain as wrenching today as they were when courts first created the doctrines that set employee freedom to switch jobs on a collision course with the corporate control of intellectual property.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68227324","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":"An Observation and a Strange But True 'Tale': What Might the Historical Trials of Animals Tell Us about the Transformative Potential of Law in American Culture?","authors":"P. Berman","doi":"10.2139/SSRN.257930","DOIUrl":"https://doi.org/10.2139/SSRN.257930","url":null,"abstract":"Few would dispute that law and legal procedures lie at the core of American self-identity and are woven deeply into the fabric of our culture. Indeed, our nation's faith in law has frequently been the subject of criticism. Most recently, self-proclaimed \"communitarian\" commentators have warned that our insistence on legal solutions is encouraging us to become a society of litigants whose attachment to \"rights talk\" and legal battles is thwarting our ability to reach consensus on social issues or instill shared values in our communities. While there are many possible responses to such a critique, this Essay offers one that is perhaps less familiar. Instead of simply arguing that law is a necessary evil or an important counterweight to majoritarian pressures, I ask whether we can conceive of ways in which law actually helps foster community by creating a forum for useful discussion and debate among differing worldviews. In order to explore the possible benefits to be gained from using \"law talk\" to address societal conflicts, I draw on my prior research concerning trials of animals and inanimate objects in medieval and early modern Europe and in ancient Greece. These seemingly bizarre legal proceedings may provide a useful thought experiment that allows us to imagine three possible social functions of law more generally. First, the mere assertion of legal jurisdiction may, in and of itself, help to define the boundaries of membership in a community. Second, law provides a rationalizing framework and a formal discourse that encourages a dialogue built on appeals to broader philosophical and legal principles. In addition, the ritualized nature of legal discourse may itself be a source of comfort in times of traumatic stress. Third, and perhaps most importantly, legal and quasi-legal discourse, particularly when it is widely dispersed within a culture, may provide a useful language both for debating and contesting social and political issues and for adjudicating among the multiple narratives that are inevitably present in a heterogeneous society. Thus, law may function as a symbolic terrain of engagement for competing worldviews. In this vision, our supposed national tendency to wage legal battles may not be a sign of true divisiveness, but rather of the constructive need for a discursive forum to tell alternative stories. If law can actually play such a generative discursive role, then perhaps our nation's abiding legal faith is not solely the albatross we have been led to believe it is. Perhaps our faith is also an opportunity. By creating both a forum and a language for conversation among diverse cultural narratives, and by establishing a commitment to a culture of conversation about competing values, legal debates can foster dialogue in a postmodern culture where most historical verities have been exposed as products of hierarchy. Such dialogue, because it includes the possibility for continuous self-criticism and recreation, may even open the spa","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2001-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.257930","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68211401","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":"A General Framework for Competitive Analysis in Wireless Telecommunications","authors":"J. Sidak, Hal J. Singer, D. Teece","doi":"10.2139/SSRN.257924","DOIUrl":"https://doi.org/10.2139/SSRN.257924","url":null,"abstract":"The Telecommunications Act of 1996 sets forth extensive provisions to unbundle the local telecommunications network to encourage the development of a competitive market for local telephone. It would seem to have been an unstated premise of those statutory provisions and the Federal Communications Commission (FCC) rules interpreting them that the task of unbundling is one that should take place in a technological vacuum. Although the Telecommunications Act of 1996 ostensibly removed artificial regulatory distinctions based on the particular technology employed to produce a communications service, the administrative rulemakings and federal court litigation that have dominated the first three years of experience under the new statute have focused on the traditional wireline access network and have seemingly ignored the fact that, over the same period, wireless telecommunications has rapidly matured as a substitute for wireline access. If regulators were to acknowledge that development, the entire exercise of wireline unbundling could become irrelevant. Wireless local telephony already provides a substitute for wireline access. It is therefore highly pertinent for a symposium on interconnection, such as this one, to consider the FCC's policies that artificially constrain the market structure for wireless telecommunications services. The Supreme Court's 1999 decision in AT&T Corp. v. Iowa Utilities Board, reversed the FCC's unbundling rules for incumbent local exchange carriers to the extent that the agency failed to establish a reasonable standard for determining whether it is necessary to unbundle a particular element and whether the failure to unbundle that element would impair and entrant's ability to compete in the provision of local telecommunications services. In this Article, we propose a general framework for evaluating competition in wireless telecommunications. Although our analysis has immediate ramifications for wireless telecommunications policies-such as spectrum caps and mergers of wireless carriers-the same analysis can shed light on the question of whether, or for how long, it is necessary to mandate the unbundling of even the copper loop, which constitutes the element of the wireline network that is considered the least susceptible to duplication by competitors. If wireless is indeed an access substitute for wireline copper loops, and if wireless thus permits the competitive supply of bundled services that are satisfactory substitutes in consumers' minds for the typical bundle of services that consumers have until now demanded in conjunction with standard wireline access, then Congress, the FCC, the state public utilities commission, and the courts must ask: Is the great experiment of mandatory unbundling of telecommunications networks worth the candle? That consequential question emerges from the analysis that we employ to study a seemingly narrower issue of wireless telecommunications policy. By regulation, the FCC has limited to ","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2001-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68211339","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":"A need to know basis: record keeping, information access, and the Uniform Status of Children of Assisted Conception Act.","authors":"A Shelf","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2000-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22127080","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":"Monstrous Offenders and the Search for Solidarity through Modern Punishment","authors":"J. Kennedy","doi":"10.1093/acprof:osobl/9780199861279.003.0012","DOIUrl":"https://doi.org/10.1093/acprof:osobl/9780199861279.003.0012","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60654540","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":"'If Property Rights Were Treated Like Human Rights, They Could Never Get Away with this,' Blacklisting and Due Process in U.S. Economic Sanctions Programs","authors":"Peter L. Fitzgerald","doi":"10.2139/SSRN.181028","DOIUrl":"https://doi.org/10.2139/SSRN.181028","url":null,"abstract":"Economic sanctions have proliferated in the last half of the twentieth century, and become the \"first choice\" of U.S. policymakers seeking tools to address many complex international issues. A key feature of these various sanctions programs is the use of a blacklist, to bring third party agents, controlled entities, and corporate cloaks operating elsewhere within the ambit of the sanctions aimed at a particular country or destination. These blacklists have now grown to include several thousand individuals and entities. However, despite the growing importance of economic sanctions, and their accompanying blacklists, these programs are still managed by a relatively small office within the Treasury Department, the Office of Foreign Assets Control (OFAC). Using the example of the IPT Company, Inc., a small but long established U.S. based corporation with foreign ownership, and the economic sanctions program targeted at the Federal Republic of Yugoslavia, this Article examines the processes used by OFAC to establish, impose, and implement such sanctions on a particular destination, and the closely related process of blacklisting particular parties associated with the sanctioned destination. It explores the unique, adversarial, relationship with the public which characterized much of OFAC's operations until recent years, and the impact that attitude has had on the promulgation, notice, distribution, and enforcement of OFAC's regulations. After considering the important, but limited, role individual case by case challenges have played in improving these processes, the Article concludes by suggesting that new legislation is required to remedy ongoing deficiencies in OFAC's implementation of its programs. Accordingly, it concludes by urging that the pending Sanctions Reform Act be expanded to provide detailed guidance on how sanctions should be implemented, in a manner similar to the way the U.S. Congress has both directed and overseen the operation of the export control system with the Export Administration Act.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"1999-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67750678","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":"Reading Justice Brennan: Is There a 'Right' to Dissent?","authors":"R. Little","doi":"10.2139/SSRN.172788","DOIUrl":"https://doi.org/10.2139/SSRN.172788","url":null,"abstract":"While there is a great deal of literature addressing the pros and cons of dissenting judicial opinions, no one has asked whether judges in a multi-judge court have a \"right\" to dissent. A \"complete\" right to dissent would include not just rights to (a) privately express one's disagreement to one's colleagues; and (b) have the fact that one does not join a majority opinion publically noted; but also (c) a right to have a written expression of one's dissenting rationale published in company with the majority's opinion. Justice Brennan delivered a wonderful \"Defense of Dissents\" in 1985 (Hastings Law Journal); not surprisingly, perhaps, so has Justice Scalia (Journal of Supreme Court History, 1994). This essay is introductory to a reprint of Justice Brennan's lecture, celebrating the Hastings Law Journal's 50th anniversay. The essay suggests that the constitutional foundation for a \"right to dissent\" may be found in the First Amendment (discussing \"compelled silence\" cases), as well as in the core meaning of the Article III terms \"court\" and \"judge.\" More historical investigation needs to be done on the historical understanding of judges and their ability to issue dissents. Moreover, a \"right to issue a dissenting opinion\" does not necessarily imply a \"right to defy precedent.\" The concepts are separable, perhaps properly so. Nevertheless, the constitutional claim for a right to dissent is not insubstantial. The essay includes a brief discussion of current judicial disciplinary charges that have been filed against a California appellate judge, Presiding Justice J. Anthony Kline, because he dissented from a majority judgment compelled (he conceded) by California precedent. Those charges should be dropped. (In August 1999 the charges against Justice Kline were in fact dropped with the Commission on Judicial Performance stating that judges \"must be able to [dissent] free from fear of discipline for the free expression of their ideas.\")","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"1999-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67728998","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 Origin of the Appeal in America","authors":"M. Bilder","doi":"10.2139/SSRN.140477","DOIUrl":"https://doi.org/10.2139/SSRN.140477","url":null,"abstract":"The appeal has been treated by academics as a mere legal procedure, possessing no particular significance. Indeed, for many years, legal scholars accepted the influential arguments of Professors Julius Goebel and Roscoe Pound that the appearance of the appeal in early American courts arose either from confusion about English common law legal procedures or was the result of colonial adaptation of English justice-of-the-peace practices. Professor Bilder challenges this conventional explanation of the origin of the appeal by locating the early American colonists within a transatlantic Western European legal culture. Professor Bilder's Article draws on recent work in cultural history to propose the idea of a \"culture of appeal\" in early America. Exploring the larger set of meanings and practices surrounding the word \"appeal,\" she argues that the culture of appeal developed from legal, religious, political, and literary ideas in England before the 1630s. In particular, Professor Bilder argues that the appeal arose outside of the common law. She demonstrates that the appeal carried with it a belief in the importance of equity and a debate about the location of supreme authority. The Article traces the culture of appeal as it journeyed into Massachusetts and Rhode Island in the 1640s and reveals that these meanings were accepted and embraced by the early colonists. Professor Bilder concludes that the presence of the appeal in American law represents something far greater than Goebel's or Pound's interpretation of it as a mere common law procedure; she suggests that the appeal signifies a deep cultural concern for a system of equitable justice.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"1998-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68175707","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}