Showing papers in "California Law Review in 1998"

Legal Implications of Network Economic Effects

Abstract: Economic scholarship has recently focused a great deal of attention on the phenomenon of network externalities, or network effects: markets in which the value that consumers place on a good increases as others buy the good. Though the economic theory of network effects is less than fifteen years old, and is still not thoroughly understood, network effects are increasingly playing a role in legal argument. Judges, litigators, and scholars have suggested that antitrust law, intellectual property law, telecommunications law, Internet law, corporate law, and contract law need to be modified to take account of network effects. Their arguments reflect a wide range of views about what network effects are and how courts should react to them. In this Article, we explore the application of network economic theory in each of these contexts. We suggest ways in which particular legal rules should—and should not—be modified to take account of network effects. We also attempt to draw some general conclusions about the role of network economic the-

Justice from the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement

Abstract: In this Article, Professor Foster examines the environmental justice movement from the "ground up "-from the perspective of the predominantly poor, African-American residents of Chester, Pennsylvania who attempted to stop the clustering of waste facilities in their community. From this perspective, Professor Foster evaluates the manner in which the phenomenon of environmental injustice is framed, the efficacy of reforms in environmental decision-making processes, and the strategies and possibilities of grassroots efforts in achieving environmental justice. She argues that the distributive paradigm that often frames discussions of environmental injustice obscures the mechanisms and processes underlying inequitable outcomes, thwarting a full understanding of the phenomenon. Case studies such as Chester, however, illustrate that disproportionate exposure to environmental hazards result from a set of ongoing social processes that structure the political economy of poor communities of color. These grassroots struggles provide a window into the social relations and processes underlying distributive inequities and, thus, assist reformers in identifying the types of policy reforms likely to help achieve environmental justice. Professor Foster argues that

A New Look at Trade Secret Law: Doctrine in Search of Justification

Abstract: Introduction ..................................................................................... 243 I. Where We Are Today-A Brief Summary of Current Trade Secret Law ................................................................ 247 A. Information That Qualifies as a Trade Secret ........................ 248 B. Improper Acquisition, Use or Disclosure ............................... 250 II. How We Got Where We Are-An Intellectual History of Trade Secret Law ....................................................... 251 A. The Emergence of a General Theory of Trade Secret Law ........................................................................... 251 B. The Collapse of the General Theory ..................................... 259 III. Making Sense of Where We Are-Arguments from Efficiency ......................................................................... 260 A. Incentives to Create .............................................................. 262 1. The General Argument ................................................... 262 2. The Argument Applied ................................................... 264 3. Intermediate Research Results and Nontechnological Information ........................................ 270

Civil Rights Perestroika: Intergroup Relations after Affirmative Action

Abstract: In this Article, Professor Krieger examines the implications of social cognition and social identity theory for the debate over affirmative action. In Part I, she explores the extent to which insights from those fields support the claim that affirmative action preferences exacerbate intergroup tensions and perpetuate certain subtle forms of intergroup bias. Finding qualified support for that view in both theoretical models and empirical evidence, Part I concludes that at least certain preferential forms of affirmative action may injure intergroup relations in a variety of troubling ways. Extending the analysis in Part II, Professor Krieger inquires whether, absent preferential forms of affirmative action, remaining legal and policy tools will suffice to control discrimination and prevent the further segregation of American society. Part II concludes that these remaining tools, which include a colorblindness model of nondiscrimination, reliance on an objective concept of merit, and the use of individual disparate treatment adjudication as a primary law enforcement tool, are unequal to the task. The misplaced confidence in these tools often found among affirmative action opponents derives, Krieger suggests, from a misunderstanding of the nature and sources of intergroup bias, from a failure to recognize its subtlety and tendency to persist over time, and from over-reliance on limited adjudicatory and regulatory approaches to address what is fundamentally a complex cultural problem. Accordingly, Professor Krieger argues that we are not yet ready to abandon preferential forms of affirmative action for the simple reason that we have nothing adequate with which to replace them. Unless more inclusive jurisprudential models of intergroup bias and new approaches to reducing such bias are developed, the problems of discrimination and inequality of opportunity can be expected to worsen in a post-affirmative action environment. In her Conclusion, Krieger articulates a set of first principles and constructs a general conceptual foundation for the future development of such a broadened view.

Autonomy or Community? An Evaluation of Two Models of Parental Obligation

Abstract: The article examines this question: How much do parents owe their children? It describes the historical development of the child support obligation and current support \"guidelines,\" mandated by Congress with the hope of raising support levels. It utilizes several distributive justice theories to evaluate the guidelines, concluding that they fail under any approach. The article explains that all of the surveyed distributive justice theories lead to one of two support models. The \"Community Model\" bases the support obligation on family membership and mandates income sharing as a basic approach. The \"Autonomy Model\" bases the support obligation on both the societal burden produced by nonsupport and the nonsupporting parent's contractual obligations to the custodial parent; it mandates public assistance (or poverty) prevention and contract enforcement as basic goals. The Article describes the results that the Community and Autonomy models would achieve and evaluates available evidence bearing on the choice of a model, including survey data on public attitudes toward the support obligation, the extent to which each model is consistent with the assumptions implicit in related areas of law, and the ability of each model to meet the policy concerns that motivated the child support initiatives in the first place. It concludes that the Community Model is the better choice.

The Nonmanufacturing Patent Owner: Toward a Theory of Efficient Infringement

Abstract: Patent law provides for injunctive relief against infringers. Courts rarely deny a patent owner's request for injunctive relief, regardless of the actual harm being suffered by the patent owner because of a presumption of irreparable harm in patent cases, a presumption seen as necessary to promote invention. This Comment explores the justifications and goals of the patent system as well as economic theories as applied to law, and argues that injunctive relief for intentionally nonmanufacturing patent owners is antithetical to the goals of the patent system and is economically inefficient as well. As a result, the Comment proposes a model of \"efficient infringement, \" whereby the use of liability rules within the context of patent litigation will promote the commercialization of patents and concomitant wealth maximization.

The Geopolitical Constitution: Executive Expediency and Executive Agreements

Abstract: From the Founding through the Second World War well established understandings constrained executive power over foreign relations. Since the Cold War the executive has enlarged its foreign relations power. Courts and commentators justified and defended the growth of executive power in relation to two geopolitical phenomenon. First, the executive was better positioned to command the United States' wider global responsibilities. Second, the threat posed by Soviet expansionism and nuclear missile technology did not afford time for congressional deliberation. While scholars have debated whether the Cold War actually justified the extent of executive power, they have generally accepted as a self-evident proposition that the president's authority should expand in response to geopolitical circumstances. Professor Paul characterizes the proposition that presidential power expands relative to geopolitical exigencies as a "discourse of executive expediency." Paul traces the origin of this discourse to the domestic debates over the Bricker Amendment, McCarthysm and the War in Indochina and shows how courts used this justificatory rhetoric to construct a new method for interpreting the president's constitutional powers. Focusing particularly on the use of executive agreements, Paul argues that even in the absence of any external threat, courts willingly suspended critical judgments and embraced expediency discourse. In Paul's view, the expansion of the president's foreign relations power obstructed public accountability, facilitated interventionism, and corrupted the policy-making process. Paul challenges the continued reliance on Cold War discourse and offers an alternative approach to adjudicating questions on the reach of executive foreign relations power.

The Partnership Conception of Democracy

Abstract: Professor Michelman takes up a central issue of political and constitutional theory in his intriguing Brennan Lecture-the bewitching idea that democracy means self-government. We say that democracy is valuable because in a democracy the people govern themselves, and it is this sense, rather than any supposed instrumental advantages democracy enjoys over other forms of government, that explains its great contemporary popularity. But we have great difficulty in stating what the claim of self-government means. Democracy cannot provide self-government in the most literal sense: individual citizens cannot have a veto on law or

Democracy, Popular Sovereignty, and Judicial Review

Abstract: It is eminently appropriate that the Inaugural Lecture of the Brennan Center Symposium on Constitutional Law be delivered by Frank Michelman, for no one could be more deserving or more enlightening. It is also appropriate that Michelman should choose as his topic the tension between democracy and constitutionalism, for this tension has been the central problem of American constitutional theory since the onset of the twentieth century. Constitutional theory is an odd enterprise. In contrast to certain political philosophies that aspire to systematic analysis based on first principles, constitutional theory primarily seeks to expose and clarify the principles immanent within the practice of constitutional adjudication. For this reason constitutional theory cannot posit itself behind a "veil of ignorance"' or within an "ideal speech situation."2 Constitutional theory is always, so to speak, within our tradition and our history; it is parasitic on the very practice it seeks to explain. The achievements of revered and influential Justices, like William J. Brennan, whom we are here justly convened to honor, must therefore be taken as part of the data to be explained. In this sense, Michelman is right to place Brennan's work at the center of his investigation.

Bytes and Pieces: Fragmented Copies, Licensing, and Fair Use in a Digital World

Abstract: law's fair-use doctrine has taken hold in court decisions and academic discourse. This interpretation posits that fair use exists in large part to counteract economic imperfections that prevent smooth functioning of the copyright marketplace. Recently, commentators focusing on this type of analysis have predicted a drastically reduced future for fair use in digital media such as the Internet. The Clinton Administration's task force on digital issues, adopting these commentators' logic, has suggested that fair use may be unnecessary when an owner can license uses. This conclusion rests on the idea that if an owner can license the use, then the market is free of imperfections, and thus fair use is unnecessary. The author agrees that the Internet will markedly reduce many types of market imperfections. The Internet grants owners the ability to reach most users at very little cost. However, the author argues that important sources of market imperfection will continue to implicate the core values that animate fair-use policy. At base, the copyright framework must always serve to maximize the public benefit from expressive works. In the face of lingering bargaining costs, externalities, or antidissemination motives, the new medium does nothing to ensure that the parties to a given bargain will act with the public's best interest in mind. The author focuses on one type of copying activity central to everyday use of the Internet: fragmented literal copying of very small chunks of content. The author concludes that, notwithstanding copyright owners' ostensible ability to license these uses cheaply, fair use remains an

Two Types of Discrimination: The Familiar and the Forgotten

Abstract: This essay argues that current Equal Protection doctrine fails to recognize an important conceptual distinction between two types of discrimination. Current doctrine is inadequate, according to the author, because it treats all discrimination cases as if they were instances of only one of these types. As a result, the Supreme Court mistreats discrimination cases of the forgotten variety. The author draws a distinction between proxy and non-proxy discrimination. Proxy discrimination uses the classification in the law as a means to reach a set of persons with a different, correlated trait. Non-proxy discrimination, by contrast, aims at the set defined by the classification itself. Because each has a distinct aim, each requires an examination of different moral issues. The author argues that current Equal Protection doctrine is suited for proxy discrimination only. Non-proxy cases are forced into an inappropriate doctrinal scheme with two unfortunate results. First, the Court focuses its attention on irrelevant issues and second, the Court fails to address the real and important issues that cases of non-proxy discrimination present. At the close of the Essay, the author sketches a new theory for non-proxy cases and demonstrates how this theory casts familiar issues like affirmative action and single-sex education in a new light.

The Unintentional Fallacy

Abstract: "Plus Va change, plus c'est la mime chose."' Aside from expressing a certain Gallic conservatism, the phrase embeds some deep wisdom. Details change, but principles apply and reapply throughout history. That is why we learn from history. By examining the general principles at work in the past, we make reasonable predictions about how things will go in the future-and this in spite of the radical changes that also take place over time. There is a lesson: the world changes radically and yet, in a way, changes little. The very idea of a constitution relies on this. If every aspect of a polity were constantly in flux, there could be no constitution. It would be dated before it became settled. But at an abstract level, many aspects of a political organization can remain stable over time. Principles that permanently order and constrain those aspects serve as ballast against the tides of fancy. It is no use being too specific, however. Unless the principles are pitched at the right level of generality, change and the passage of time will render them irrelevant. Justice Antonin Scalia's theories of statutory and constitutional interpretation may conflict with these homespun observations. Our commitment to the Constitution presupposes that the conditions it establishes are sufficiently general to apply to indefinitely many and varied particular circumstances. No matter how much the details of our circumstances may change, we will abide the Constitution-it will still apply. There are, for example, communicative media today that were not dreamt of in the Framers' day, such as e-mail, cellular telephones, and

Justifying Gender-Based Affirmative Action under United States v. Virginia's Exceedingly Persuasive Justification Standard

Abstract: While affirmative action has been a hot topic over the course of the past decade, much of the commentary and litigation associated with the issue has involved race-based programs. In fact, the Supreme Court has never examined a gender-based affirmative action program under the Equal Protection Clause. This lack of guidance has resulted in a split among the federal circuit courts of appeals with regard to the appropriate level of scrutiny to be applied to such programs. This Comment addresses this circuit split in light of the Supreme Court's important decision in United States v. Virginia, 116 S. Ct. 2264 (1996), which in its result opened the doors of the Virginia Military Institute to women. This Comment concludes that the Supreme Court mandated that courts apply a new "exceedingly persuasive justification" level of scrutiny to all gender-based classifications, including gender-based affirmative action programs. Finally, this Comment describes the requirements a genderbased affirmative action program must meet in light of this new standard.

In Defense of Resident Hiring Preferences: A Public Spending Exception to the Privileges and Immunities Clause

Abstract: This Comment analyzes the legal hurdles that cities must overcome when they attempt to mandate resident hiring preferences on public works construction projects. It begins by noting an emerging doctrinal inconsistency in the way courts review these local resident preference plans. Specifically, it observes that cities have been able to overcome challenges brought under the Dormant Commerce Clause by appealing to a market participant exception, while they have not been able to invoke an analogous defense to fend off challenges brought pursuant to the Privileges and Immunities Clause. In analyzing this inconsistency, this Comment argues that there is no principled reason for the different treatment the two types of claims receive, given that both Clauses were motivated by similar principles of interstate comity and economic unity. This Comment argues further that there can and should be a public spending exception to the Privileges and Immunities Clause, similar to the Dormant Commerce Clause's market participant exception. The exception would exempt cities from the Privileges and Immunity Clause's purview when those cities place local resident hiring requirements on jobs funded with public money. Such an exception would be consistent with the underlying principles of the Clause, would respond to the particular contours of current Privileges and Immunities doctrine. Further, an exception would allow cities to adopt commonly employed preference plans, which plans cities rely on to address many pressing social problems.

`Make Your Own Kind of Music': Queer Student Groups and the First Amendment

Abstract: As openly gay and lesbian students become a more regular presence in public high schools, students in many schools have started lesbian and gay student organizations. In response, some school districts and state legislatures have attempted to prevent the clubs from meeting, either through categorical bans on all extracurricular groups or through legislation specifically designed to prevent the gay clubs from meeting. This Comment examines the First Amendment issues raised by these efforts. It argues that the Supreme Court's current approach to student speech, which focuses on whether the speech is school sponsored and on the application of public forum doctrine, lacks an underlying rationale and leads to inconsistent outcomes. In its place, the author urges the Court to adopt a mission-based test that examines the relationship between the regulation on speech and the educational purpose underlying the activity. Because student clubs generally exist to promote self-exploration and foster the development of individual identity, this new test would extend First Amendment protection to gay and lesbian student groups.