Showing papers in "California Law Review in 1992"

The Benevolent Paternalism of Japanese Criminal Justice

Abstract: Models for a criminal-justice system based on an ethos of rehabilitation and reintegration-such as Llewellyn's 'parental\" and Griffiths' 'family\" models-have been regarded as idealistic but unworkable in the real world, except perhaps in totalitarian or primitive societies. Professor Foote, however, has found in Japan just such a model, which he labels \"benevolent paternalism. \" The Japanese criminal-justice system is benevolent in that its goal is to achieve reformation and reintegration into society through lenient sanctions tailored to the offender's particular circumstances. The system is paternalism in that it allows substantial discretion to the state in both gathering and using information about the offender and the offense. Drawing upon his extensive research in Japanese sources, from statutes to statistics, Professor Foote examines the successes and failures of benevolent paternalism. While recidivism rates indicate that many offenders are indeed reintegrated into society, the system has a dark side, permitting intrusions into the offenders' interests in autonomy and due process. Recognizing that benevolent paternalism comes at a price and can maintain order only under certain societal and cultural conditions, this Article suggests ways in which the Japanese criminal-justice system can adapt to change. It also reminds us that it is in reconciling the offender with the community that the law comes to work

Copy Wrong: Plagiarism, Process, Property, and the Law

Abstract: Wrongful copying in literature or academia is called plagiarism by writers and scholars and copyright infringement by lawyers and judges. Although superficially similar, the concepts of plagiarism and infringement are fundamentally different in the significance they attach to such characteristics of the offense as amount of copying, attribution of authorship, and intent This Comment argues that the different understandings of both copying and wrongfulness implicit in the two concepts reveal different perspectives on creativity: plagiarism emphasizes the creative process, while infringement emphasizes the creative result. The legal emphasis on result has manifested itself in the law's choice of the intellectual-property framework for the resolution of literary disputes. The author suggests that the property metaphor is at best incomplete and at worst misleading when applied to words. She recommends a supplementary legal metaphor: the creative contract. Contract principles provide a framework with which to analyze the creative process as a transaction between creator and audience, enabling the law to recognize that creativity is an ongoing act of communication among people-as is the law itself

Pluralism, Parental Preference, and Child Custody

Abstract: Modern child custody law faces an important challenge in responding to pluralistic and evolving gender and parenting roles. Professor Scott finds rules favoring maternal custody, joint custody, and the best interests of the child wanting; she argues that the optimal response to the current pluralism in family structure is a rule that seeks to replicate past parental roles. This \"approximation\" standard promotes continuity and stability for children. It encourages cooperative rather than conflictual resolution of custody, thereby ameliorating the destructive effects of bargaining at divorce. It also recognizes and reinforces role change in individual families, encouraging both parents to invest in parenting before and after divorce. Although an approximation approach might disappoint those who believe that custody law can serve as a transformational tool of social reform, Professor Scott argues that mandating conformity to prescribed family roles is costly and ultimately ineffective. Her proposed framework allows families to function according to their individual values and preferences while subtly encouraging the restructuring of parental roles in the direction of desirable reform.

A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading

Abstract: In this Article, Professor Boyle undertakes an analysis of the law's treatment of information across four apparently disparate realms: copyright, genetic information, blackmail, and insider trading He argues that questions of information regulation, commodification, and access are shaped by two neglected processes of interpretive construction First, such issues are often decided by pigeonholing them into implicitly contradictory stereotypes of "public" or "private" information These conflicting stereotypes have their roots in basic assumptions about politics, the market, and privacy in a liberal state Second, Professor Boyle argues that tension between these stereotypes is often apparently resolved by the use of a seductive image: the romantic author whose original, transformative genius justifies private property and fuels public debate Thus, conventional wisdom, courts, and even economic analysts are more likely to favor granting property rights in information when the controller of this information can convincingly be ascribed the qualities of originality, creativity, and individuality, the defining attributes of romantic authorship This is possible in the copyright domain and for manipulators, if not sources, of genetic information Blackmailers and insider traders cannot so readily be fitted into the romantic author mold, and are classified instead as transgressors against, respectively, the "private" and "public" stereotypes of information The Article concludes by assessing the impact of the implicit stereotypes on the politics of the "information age" Professor Boyle argues that an emphasis upon the ideology of authorship could be as important to an information society as the notions of freedom of contract and wage labor were to an earlier, industrialized society This ideology of authorship, Professor Boyle contends, with its tendency to devalue the claims of sources and of audience, has the potential for strong detrimental effects on the political and economic structure of the "information age"

Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation

Abstract: As the law now stands, a nonviolent homosexual advance may constitute sufficient provocation to incite that legal fiction, the reasonable man, to lose his self-control and kill in the heat ofpassion, thus mitigating murder to manslaughter. The author argues that this homosexual-advance defense is a misguided application of provocation theory and a judicial institutionalization of homophobia Provocation defenses have their origin and rationale in tangled theories ofjustification and excuse, both of which divert attention away from the killer and onto the behavior of the deceased victim. The homosexual-advance defense appeals to irrational fears, revulsion, and hatred prevalent in heterocentric society, focusing blame on the victim's real or imagined sexuality. In allowing the defense, the judiciary reinforces and institutionalizes violent prejudices at the expense of norms of self-control, tolerance, and compassion that ought to reign in society. The defense affirms homophobia and undermines the ability of courts to produce fair verdicts by creating a lower standard of protection against violence afforded to an identifiable class of victims. The author concludes that we ought to expect more from our courts: judges should hold as a matter of law that a homosexual advance is not sufficient provocation to incite a reasonable man to kill. Murderous homophobia should be considered an irrational and idiosyncratic characteristic of the killer rather than a normative social aspiration incorporated as the homosexual-advance defense into the standards that govern jury decisionmaking.

The Right to Privacy Revisited: Privacy, News, and Social Change, 1890-1990

Abstract: In 1890, Warren and Brandeis published their extraordinarily influential article The Right to Privacy, which conceptualized privacy as a right to be free from the prying eyes and ears of others. In this Article, Dean Bezanson assesses the modern currency of the privacy right concept as developed by Warren and Brandeis. He argues that the boundaries on privacy described in The Right to Privacy were a response to the encroachment of urbanization on rural values and institutions and an attempt to develop communicative norms from contemporary but threatened social conventions. The author compares the social conditions of today with those of the late nineteenth century, exploring changes in the meaning of news and in the technologies of communication. He concludes that circumstances have changed so dramatically that the rationale for the right to privacy must change as well. No longer can privacy be envisioned as a set of social conventions imposed on discourse. Social attitudes are too diverse and decentralized, and the emphasis on individualism too great, to argue for any one set of social norms about communication. Accordingly, the author contends that privacy should be premised on the individual's control of information. This approach suggests that the legal emphasis on controls over publication be shifted to a duty of confidentiality imposed on

Letting patients die: legal and moral reflections.

Abstract: Fifty years of medical advances have profoundly challenged some of our most deeply held moral beliefs about life and death. Doctors and hospitals that once would have prolonged life now routinely discontinue lifesustaining treatment. Professor Kadish examines the legal and moral aspects of these decisions. Courts have justified discontinuing treatment on grounds of the patient's right to autonomy. While they have sought to confine their decisions to letting-die situations, the strategy creates an instability, since in principle the right of autonomy extends to choices of suicide, assisted suicide, and active euthanasia. Professor Kadish then considers advance directives and the doctrine courts use when there has been no advance directive, the doctrine of substituted judgment. He argues that advance directives lack the full moral force of contemporary choices and should yield to the current compassionate interests of the patient, as well as to the patient's choice to live even if less than fully competent. Finally, he concludes that courts have gone astray by invoking the principle of autonomy in substituted judgment situations, because autonomy cannot be at issue when the patient has made no choice. Instead, Professor Kadish favors a decision based on the best interests of the patient, taken to mean a decision in conformity with the values and commitments that guided the patient's competent life, and one regardful of the quality of the experiences of the present patient. He rejects a standard that would seek a decision designed to make the patient's life as a whole a better one in any objective sense.

The Principle of Hadley v. Baxendale

Abstract: From the classic contract-law case of Hadley v. Baxendale came the principle that consequential damages can be recovered only if, at the time the contract was made, the breaching party had reason to foresee that consequential damages would be the probable result of breach. As traditionally formulated, the principle's standard of foreseeability has been strict and inflexible. This formulation diverges from both the general principle of expectation damages in contract law and the principle of proximate cause outside the law of contract. Professor Eisenberg argues that neither least-cost theory, the theory of efficient breach, nor information-forcing incentives justify the principle of Hadley v. Baxendale. He recommends that the principle be replaced by a regime ofproximate cause, contractual allocation of loss, and fair disclosure. The new regime would adjust the standard of foreseeability according to the nature of the interest and the wrong, and would apply the standard at the time of breach. In modern business practice and modern contract law the metamorphosis into a regime of proximate cause, contractual allocation of loss, and fair disclosure has already begun; to discard the principle of Hadley v. Baxendale would serve the interests of both efficiency and justice.

Brown and Miranda

Abstract: The Warren Court's Brown and Miranda opinions are among the most controversial of the twentieth century. Professor Seidman argues that these decisions exemplify the ways in which legal consciousness molds and distorts our view of social reality. The existence of a permanent, racially defined underclass, the most threatening of all the contradictions in our democracy, has been domesticated and controlled by constitutional adjudication, which produces a false sense of closure and resolution. Constitutionalism has primarily served to legitimate the status quo. Brown and Miranda have created a world in which we need no longer be concerned about inequality because the races are now definitionally equal and we need no longer be concerned about official coercion because defendants have definitionally consented to their treatment. Ambiguities persist in these legal doctrines that might potentially be harnessed to energize reformist political movements, but today the doctrines produce only the sensation of upheaval and revolt with none of the discomfort and insecurity that would accompany actual redistribution of social resources.

Partial-Industry Regulation: A Monopsony Standard for Consumer Protection

Abstract: Regulations usually apply to all members of an industry. Professors Ayres and Braithwaite propose that in some situations 'partial industry\" regulation is superior to all-or-nothing regulatory policies. Partial-industry regulation governs only a part of an industry, leaving other parts either unregulated or disparately regulated. Regulating only an individual firm (or subset offirms) can engender a system of checks and balances in which the regulated and unregulated portions of the market each curb the excesses of the alternative form of market governance. Partial-industry regulation can thus promote efficiency by restraining monopoly power without giving rise to the evils of either captured or benighted regulation. The authors' theories ofpartial-industry intervention gain support from an analysis of monopsonist behavior. Governments interested in promoting consumer welfare should often emulate what a monopsonist consumer would do. One way to reconceive of the regulator's decision whether to subsidize fringe competition is to ask if a hypothetical downstream monopsonist would subsidize upstream entry to 'second-source\" the product. A monopsony standard provides not only a powerful tool for analyzing how government might intervene to protect consumers, but also a limiting principle for analyzing when intervention is appropriate.

Robinson-Patman Act Regulation of Intraenterprise Pricing

Abstract: The Robinson-Patman Act prohibits sellers from charging different customers different prices for the same goods. Whether a seller's wholly owned subsidiaries count as \"different purchasers\" under the Act is unclear. The statute and its legislative history are ambiguous, and the case law reveals that federal courts have taken two approaches: the dominion-and-control test, which allows differential pricing to subsidiaries only when they are closely controlled by the parent firm, and the single-entity rule, which always treats parent and subsidiary as a unitary firm and exempts sales between them from the Act. Although the trend in the federal courts has been toward the single-entity rule, the circuits remain divided. This Comment presents two new arguments for adopting the single-entity rule. First, intraenterprise pricing serves important functions in firm management, and the costs of interfering with those functions could far exceed the Act's intended benefits. Second, this Comment uses transaction-cost analysis, bolstered by original empirical research, to show that even when a firm does not maintain tight dominion and control over a subsidiary, it may nonetheless need to exercise such control over specific transactions. The dominion-and-control test fails to appreciate the need for such control because of its emphasis on firm-level, as opposed to transaction-level, indicators of control, and can therefore result in costly and unwarranted regulation. The dominion-and-control test should therefore be abandoned, and the single-entity rule should be adopted.

The Creationist and the Sociobiologist: Two Stories about Illiberal Education

Abstract: In a liberal culture, it is a great rhetorical advantage to appear in a dispute as the champion of free speech against the forces of repression. The left has held this advantage for a long time. The student revolt of the 1960s opened with a "Free Speech Movement," and the bumper sticker that directs us to "Question Authority" implies that the left's politics is a matter of raising questions rather than imposing answers. Recently, however, academic traditionalists like Dinesh D'Souza have seized the moral high ground by describing a left-imposed atmosphere of "political correctness" in the universities that leads to "illiberal education." In effect, they have captured the bumper sticker and turned its message around. The "PC left" under attack is post-Marxist, and its philosophy is post-Modernist. A brief pause for definitions is necessary. In postMarxism, racial minorities, feminists, and gays have assumed the mantle of the proletariat; the oppressor class is heterosexist white males rather than the bourgeoisie; and the struggle is for control of the terms of discourse rather than the means of production. Post-Modernism challenges the objective validity of academic traditions by starting from the premise that knowledge comes in texts whose meaning and value are determined by communities of interpreters. According to certain cultural critics (post-Liberals?), post-Modern nihilism and post-Marxist political fanati-

Making Sense of Antitrust Petitioning Immunity

Abstract: Courts have struggled to produce a coherent doctrine governing when petitioners, such as lobbyists and litigants, are immune from antitrust liability. A variety of apparently conflicting exceptions and requirements permeate Supreme Court decisions in the field. In this Article, Professor Elhauge utilizes a functional process approach to identify factors the Court has implicitly considered in determining whether immunity applies. These factors turn critically on the incentive structure of the relevant decisionmaker: in particular, on whether the decisionmaker who imposed the restraint at issue had an objective financial interest in the restraint's anticompetitive consequences. Restraints produced by such a financially interested decisionmaking process, the Article argues, are and should be denied antitrust immunity unless the activity producing the restraint does not involve market behavior and is not separable from otherwise valid input into a governmental process of decisionmaking. These functional process considerations are shown to explain the outcome in every Supreme Court case adjudicating antitrust petitioning immunity issues. Adherence to a functional process approach, Professor Elhauge concludes, will facilitate resolution of many questions and anomalies regarding petitioning immunity doctrine and permit a more accurate understanding of the relationship between antitrust petitioning immunity and the related doctrine of state action immunity.

Retirement of Sheldon L. Messinger

Abstract: The Center for the Study of Law and Society was launched in a small set of rented offices on Telegraph Avenue on July 1, 1961. Philip Selznick served as Chairman and Sheldon Messinger as Vice Chairman. (I came on board in January 1962.) Along with Phil, Shelly set a tone that combined intellectual challenge with easy informality. Students and colleagues sought out Shelly more than anyone to discuss inchoate theories, half-baked ideas, and plans for research. Time and again, like a magnificent editor who sees in a manuscript what the author really wants to say, Shelly would cut to the essence of the author's thesis or project, clarify the underlying argument, and show how to conceive of the idea as representing a higher theoretical concept or issue. After some years of this, Shelly became something of a legend around the Center as a supportive wizard of reconceptualization to whom several generations of students and colleagues became intellectually indebted. Such qualities led to Shelly's appointment as Professor and Dean of the School of Criminology from 1970 to 1977. By the time this appointment occurred, Shelly had also written significant articles on the transformation of social movements;' the dramaturgical interpretation of social life;' the social life of prison inmates;3 and had coauthored several