Articles

Incentive and Expectation in Copyright    

  Sara K. Stadler

In this Article, the author reveals a fundamental flaw in how courts and scholars have come to reason about copyright law. Creators expect to be rewarded for engaging in the labor of creation, and one of those rewards is the bundle of exclusive rights known as "copyright." Congress uses copyright law to give creators the rewards they expect, so as to safeguard their incentives to create. But what if creators expect too much? Must Congress use copyright law to satisfy those expectations, thus preserving what creators claim to require as "incentive?" To date, everyone has assumed that the answer is "yes." In this Article, however, the author argues that in defining the boundaries of copyright by reference to incentives, which are satisfied (or not) depending on what creators expect, Congress is ceding to creators the power to locate the boundaries of copyright law. Courts, in turn, cannot relocate those boundaries without deciding which expectations are consistent with the public interest and which ones are not-and courts do not have the tools to make that decision. Until Congress decides which rights creators are entitled to expect from copyright law (and which rights they are not), no amount of tinkering around the edges can prevent the law from becoming an instrument of increasingly perfect control-thus producing a nation of infringers who honor that law only in the breach.

Lawful Peacekeeping: Applicability of International Humanitarian Law to United Nations Peacekeeping Operations    

  Jaume Saura

The deployment and operation of United Nations peacekeeping missions has been rightly considered one of the most successful initiatives in the history of the organization. In 1988, UN peacekeeping forces were awarded the Nobel Peace Prize for their contribution to reducing tensions and ending hostilities. Although the "blue helmets" were not originally envisaged in the Charter of the United Nations, they have brought peace and stability to numerous cases of domestic and international armed conflict.

Notwithstanding the overall success of peacekeeping operations, recent violations of the laws of war by UN peacekeeping forces raise the question of the duty of UN forces to abide by the rules of international humanitarian law. This Article examines the extent of the duty of UN peacekeeping forces to observe international humanitarian norms in light of the Secretary-General's 1999 "Bulletin," Observance by UN Forces of International Humanitarian Law. The Article considers provisions of international humanitarian law that the Bulletin does not fully address, and it discusses the degree of responsibility the UN and member States must bear if a breach is committed. It argues that whenever international humanitarian law is applicable, and whenever international organizations have the capacity to implement it, UN peacekeepers must observe this body of law. This means that the United Nations as a legal entity will bear responsibility for its peacekeepers' infringements of international humanitarian law; individual UN peacekeepers ought to be subject to prosecution for any war crimes they commit; and the contributing State whose troops committed such breaches should also be held responsible.

Blakely's Silver Lining: Sentencing Guidelines, Judicial Discretion, and Crime    

  Joanna Shepherd

The Supreme Court's recent decisions in United States v. Booker and Blakely v. Washington, invalidating mandatory criminal sentencing guidelines, could have the unexpected benefit of reducing crime. This Article is the first to use regression analysis to explore the relationship between sentencing guidelines and crime. It shows that adoption of guidelines is associated with significant increases in crime, contrary to the expectations of many of the original supporters of sentencing guidelines.

After developing several economic theories about the relationship between guidelines and crime, the author investigates this relationship empirically using a large, state-level data set. The analysis shows that guidelines restricting judicial discretion in criminal sentencing are associated with increases in both violent crime and property crime. If, as is probable, the alternatives to guidelines after Booker and Blakely expand judicial discretion in sentencing, then crime may decrease substantially.

A Prescription for California's Ailing Inmate Treatment System: An Independent Corrections Ombudsman    

  Arthur L. Alarcón

California's prison system is totally broken and in urgent need of reform on many fronts. Over the past twenty-five years, California's inmate population has grown over 500%, the number of institutions has nearly tripled, and prison litigation costs have escalated tremendously. In 2004, California Governor Arnold Schwarzenegger convened the Corrections Independent Review Panel to assess issues affecting the prison system. The Panel presented a number of possible solutions to the problems faced by California's prisons, but sweeping new reforms are still needed if the entire system is to be overhauled effectively and brought into compliance with constitutional requirements.

Among the Panel's recommendations was the implementation of an ombudsman program within the Department of Corrections. This Article proposes, however, the creation of an independent corrections ombudsman whose key objective is to foster good public administration with the California Department of Corrections and Rehabilitation. An independent ombudsman will complement the Panel's objectives of bringing credibility and transparency to the administration of the prison system and ongoing reform efforts, while helping restore the public's trust in the system. Creating an autonomous corrections ombudsman, with a legislative mandate to receive, investigate and, where possible, resolve inmate complaints, would promote and significantly advance the prison reforms underway, while reducing the enormous costs of litigation. The author also provides draft legislation establishing such an independent ombudsman at the end of the Article.

When Silence Means Everything: The Application of Proposition 64 to Pending Actions    

  Gavin L. Charlston

Prior to November 3, 2004, one of the most expansive unfair competition laws in the country was on the books in California. Unlike most states, where plaintiffs are barred from bringing unfair competition claims unless they have suffered an injury-in-fact (or barred altogether from bringing such an action), in California any individual could bring an action where the defendant had engaged in a broad class of violations known as "unfair business practices." On November 2, 2004, the California electorate voted to end that practice by enacting Proposition 64. Now private plaintiffs must not only prove that they have suffered an injury-in-fact and some form of pecuniary loss, but they must also satisfy new procedural requirements in order to bring an action in the first place. The Note explores whether the amendments to the UCL enacted by the passage of Proposition 64 apply to all pending actions, or only to actions brought after Proposition 64's effective date.

Part I explores the historical framework of California's UCL, the history leading up to the passage of Proposition 64, and the contents and effects of the initiative. Part II details the two cases heard by the California Supreme Court related to this issue, and examines the arguments presented before the Court. Part III studies the divergent arguments both in support of and against applying Proposition 64 to pending actions. It also explores a related issue: whether and under what circumstances plaintiffs may amend their complaints to satisfy the newly-enacted procedural and standing requirements. The Note concludes by finding that, based on the contents of and the circumstances surrounding the passage of Proposition 64, the California Supreme Court correctly concluded that the initiative applies to pending actions.

Family Conflicts: The Role of Religion in Refusing Medical Treatment for Minors    

  Jennifer E. Chen

Traditionally, minors are subject to their parents' will when it comes to their own healthcare treatment. While most parents make decisions consistent with societal values that they should obtain the best medical treatment available when their child is critically ill, cases exist where parents have refused medical treatment for their child because of their religious beliefs. Based on constitutional rights, parents have some leeway to make these treatment refusal decisions, and in no published case to date has a child asserted a treatment preference contrary to that of his or her parents refusing treatment on religious grounds. Thus, courts have yet to deal with the scenario of a disagreement between parents and child over a religious-based decision to refuse medical treatment.

This Note examines the intersection of competing interests and individual rights involved in treatment decisions for a minor, where only one party-either the parents or the child-wants to refuse the treatment but the other party desires to obtain treatment. Part I provides a background on the development of current approaches that courts take when balancing parental rights, state interests, and the minor's rights. Parts II and III analyze the statutory and case law dealing with healthcare decision-making for minors and then examines the free-exercise rights of minors from a legal and psychological perspective. Examining these different doctrines together, this Note argues that parents should not be allowed to refuse treatment based on religious reasons for an adolescent child who desires treatment, and also that adolescents should not be granted the right to refuse treatment for religious reasons in life-threatening situations, when the parents are seeking treatment.