Category: Notes

Mixed Systems in Legal Origins Analysis – Note by Kensie Kim

From Volume 83, Number 3 (March 2010)
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A “hybrid” or “mixed” country can be defined as having substantial common and civil elements in its legal system. Hybrid countries have been an overlooked aspect of legal origins literature. This study’s comparative analysis finds that most hybrids have experienced moderate to high economic growth rates, began as civil law countries, and maintained predominantly civil law–based property and contract law, while uniformly adopting common law–based corporate and securities law.

 

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Thwarting California’s Presumptive LWOP Penalty for Adolescents: Psychology’s and Neuroscience’s Message for the California Justice System – Note by Ashley N. Johndro

From Volume 83, Number 2 (January 2010)
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In California, adolescents convicted of special circumstance first-degree murder are presumptively sentenced to life without the possibility of parole (“LWOP”) pursuant to section 190.5 of the California Penal Code. To date, California has sentenced more than 250 adolescents to die behind bars. Recent studies in psychology and neuroscience challenge this status quo. These disciplines suggest that adolescents are biophysically determined to suffer from poor decisionmaking capacities and behavior control. This Note argues that adolescent culpability is mitigated by currently valued standards, informed by science’s conception of the adolescent, and that adolescent crimes consequently warrant the lesser punishment of twenty-five years to life.

 

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Can Widening the Scope of Information Reporting to Include Income Derived from Online Sales Help to Narrow the Expanding Tax Gap? – Note by Maricel P. Montano

From Volume 83, Number 2 (January 2010)
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Over the past decade, the Internet has become an integral part of our society, and its expansion has led to a surge in e-commerce. E-commerce, defined as “any business transaction completed over a computer network, including . . . the sale of goods or services,” has similarly become integral to our society. The popularity of e-commerce is reflected in the observation that most consumers consider online retail to be “a primary benefit of the Internet.” The Internet has dramatically enhanced the ease and convenience of engaging in e-commerce in the United States and worldwide. Purchasing items ranging from textbooks to antique lamps to luxury handbags is now only a mouse click away. Items can be purchased remotely from “click and mortar businesses”—retail businesses with both a physical and Internet presence—and small online businesses alike. 

Online selling platforms, such as eBay, Amazon, and Google Checkout, have facilitated the growth of sales by small businesses, sole proprietors, and casual sellers. For instance, eBay, “the world’s largest online marketplace,” has contributed to the evolution of e-commerce by bringing sellers and buyers together in a virtual marketplace, offering a variety of both new and used items. With more than 724,000 Americans reporting that they derived their primary or secondary source of income from eBay sales in 2005, tax law must be modernized to facilitate effective taxation of Internet commerce. In particular, income tax law must be updated to incorporate income generated by e-commerce and ensure that this income is properly reflected on the tax returns of online sellers and appropriately taxed.

 

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Rethinking Donor Disclosure After the Proposition 8 Campaign – Note by David Lourie

From Volume 83, Number 1 (November 2009)
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Proposition 8, the California ballot measure that amended the state constitution to deny marriage to same-sex couples, passed by a small margin in November 2008. The campaign was contentious, well funded by both sides, and the subject of much media attention. After Proposition 8 passed, however, the debate about same-sex marriage in California was far from over. Shortly after the election, Proposition 8 opponents organized protests against certain Proposition 8 supporters and their employers throughout California and in other states. For example, opponents protested at the Church of Latter-Day Saints in Los Angeles because the church and its members raised a significant amount of money to support Proposition 8. Opponents also organized boycotts of businesses whose owners or employees donated to support Proposition 8. Several of these protests had negative repercussions for donors. For example, following threats of boycotts of his musical works and his employer, Scott Eckern, the longtime artistic director of the California Musical Theater, resigned from his position after it was revealed that he donated $1000 to Proposition 8. Marc Shaiman, the composer of the music for Hairspray, told Eckern that he would not let his work be performed in the theater due to Eckern’s support for Proposition 8. U.S. law requires a secret ballot for both candidate and issue elections, so how did opponents of Proposition 8 identify the donors to Proposition 8? The answer lies in disclosure laws. In California, as in most states, campaigns must publicly disclose certain information about individuals who donate to a ballot measure or candidate. California’s Political Reform Act of 1974, as amended, provides that all campaign donations of $100 or more must be published on the Secretary of State’s website, allowing the public to easily search for the names of campaign donors online. Further, not only must the donor’s name and the amount of the contribution be disclosed, but the donor’s street address, occupation, and employer’s name—or, if self-employed, the name of the donor’s business—must also be disclosed. On the federal level, campaign contributions to federal candidates are also now easily accessible to the public online. Federal law requires disclosure of individuals who contribute $200 or more to a candidate. This information can be viewed online through the Federal Election Commission’s (“FEC’s”) website, as well as on other websites. Not only has technology increased the availability of donor information online, but political entrepreneurs have also taken the FEC’s campaign finance data and made it even more accessible online, allowing users to search the data by multiple categories. For example, the Huffington Post, a popular blog, runs a search engine called “Fundrace 2008,” which allows a user to search for donors to 2008 presidential candidates by a donor’s first or last name, address, city, or employer. The website boasts about the easy access to the political leanings of nearly anyone a user knows of: “Want to know if a celebrity is playing both sides of the fence? Whether that new guy you’re seeing is actually a Republican or just dresses like one?”

 

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Format War, Antitrust Casualties: The Sherman Act and the Blu-Ray–HD DVD Format War – Note by Kevin L. Spark

From Volume 83, Number 1 (November 2009)
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For several years, HD DVD and Blu-ray competed to replace DVD and become the next-generation movie disc format. The battle was not fought with technological superiority but instead with exclusivity contracts. This Note analyzes whether these contracts violated the Sherman Antitrust Act (“Sherman Act”).

 

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The Western Climate Initiative: Cross-Border Collaboration and Constitutional Structure in the United States and Canada – Note by Jeremy Lawrence

From Volume 82, Number 6 (September 2009)
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Scientists have reached a consensus that global warming is a looming threat. A surprisingly large number of national politicians are lagging behind. The U.S. federal government, though making some strides toward reducing national greenhouse gas (“GHG”) emissions, has only addressed the problem in a piecemeal and halting fashion. In its place, the states have taken the lead. In Canada, the provinces have likewise taken the initiative in the face of federal inaction.

In light of these locally driven efforts, it was only a matter of time before states and provinces began to collaborate in their efforts. The first of these cross-border efforts originated in 2007, when the Western Climate Initiative (“WCI”), originally a GHG reduction partnership between a number of governors in the western United States, added British Columbia and Manitoba to its ranks.

But there is an apparent barrier to such cross-border collaboration. As the U.S. Supreme Court noted in its most recent case on global warming, “When a State enters the Union, it surrenders certain sovereign prerogatives. . . . [I]t cannot negotiate an emissions treaty with China or India.”

 

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“[J]udicial [I]mperialism”? The South African Litigation, The Political Question Doctrine, and Whether the Courts Should Refuse to Yield to Executive Difference in Alien Tort Claims Act Cases – Note by Marissa Renée Geannette

From Volume 82, Number 5 (July 2009)
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For decades, foreign nationals alleging human rights abuses were frustrated by their inability to receive their idea of adequate redress in the courts of their own countries. Beset by ills such as environmental pollution triggered by aerial drug eradication programs, the murder of union leaders by right-wing paramilitary groups allegedly financed by multinational corporations (“MNCs”), and torture and deprivation in countries like South Africa, these plaintiffs were offered a glimmer of hope by a series of rulings in U.S. courts, which had purportedly opened up to them relief through a statute passed by the American Founding Fathers themselves. But that relief has often proven elusive, as courts have hesitated to grant redress for claims brought under what they see as an outdated statute.

 

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