Notes

Since 1976, the California Coastal Commission has been charged with protecting California’s 1100-mile shoreline. The Commission has been both celebrated for protecting California’s coastal resources and denounced for exerting totalitarian control over private property rights and commercial development. Recently, a California appellate court found the Commission in violation of the state constitution’s separation-of-powers doctrine because of the California legislature’s ability to appoint and remove at will two-thirds of the Commission’s twelve members. In a special assembly, the legislature rushed to amend the Commission’s composition and provide the legislative appointees with fixed terms. The California Supreme Court must now determine whether the ad hoc response alleviates the constitutional concerns.

In this Note, David R. Carpenter argues that the California Supreme Court still should find the Commission unconstitutional because of the legislature’s continued ability to appoint two-thirds of the commissioners. Examining two recent California Supreme Court decisions, the Note identifies two approaches to the separation-of-powers inquiry. One approach asks whether the legislature’s appointment power defeats or materially impairs the governor’s inherent authority to supervise the Commission’s executive powers. The second approach, and that taken by this Note, frames the issue primarily in terms of limitations on legislative power and the problems created when legislators operate beyond their statutory role. This Note argues that appointment power enables and encourages legislators to impose arbitrary influence while abdicating their responsibility to make good law. Utilizing principles from public choice theory, this Note argues that separation of powers should guard against “the twin problems” of faction and governmental self-interest. Those concerns are heightened in this case by the scope of the Commission’s authority and jurisdiction,along with the powerful interests it regulates. Instead of minimizing political influence over Commission actions, the appointment structure has had the opposite effect. By enforcing the separation-of- powers doctrine,the California Supreme Court would take an important and principled action that would not destroy the Commission, but rather potentially would improve its integrity and independence.

In November 2001, after delaying the release of President Reagan’s presidential papers, President Bush issued Executive Order 13,233, which limits the ability of the public to access presidential documents by giving the sitting president and former presidents an effective veto over the release of their records. In this Note, Stephen H. Yuhan argues that Executive Order 13,233 is an impermissible aggrandizement of presidential power at the expense of Congress, the National Archives, and the public. In an effort to find the outer limits of the President’s power to issue executive orders, Yuhan looks first to the watershed case of Youngstown Sheet & Tube Co. v. Sawyer. Finding that Youngstown fails to yield any definitive answers, Yuhan then draws on case law and legal scholarship on the President’s appointment and removal powers. Yuhan contends that preventing arbitrary decisionmakinginterested considerations rather than the public good, Yuhan concludes, the executive order violates separation of powers.

A recent decision of the Federal Circuit, Madey v. Duke University, highlights the extremely limited protection granted to universities conducting noncommercial research from claims of patent infringement. The proper scope of the experimental use exception has been hotly debated among legal scholars, with many asserting that a broad defense is necessary to allow universities to freely conduct valuable experimental science and basic research. This Note examines the structure of university research in an effort to explain why, despite any significant legal protection, it is often in the interest of patent holders to allow infringing noncommercial research to continue unchallenged. Specifically, the commercial ties that exist between universities and for-profit entities serve to protect academic noncommercial research. While providing universities with less protection than a strengthened common law or statutory defense, this nonlegal “informal” research exception performs much the same function as a recognized experimental use exception.

In this Note, Valerie Roddy studies the continuing hesitancy of U.S. courts to include foreign relevant conduct in federal sentences, despite the expansive inclusion of domestic relevant conduct. Roddy analyzes the courts’ principal concerns and concludes that the distinctions that courts are drawing between foreign and domestic relevant conduct are illusory. She argues that to achieve consistency in sentencing and proportional sentencing for international defendants, foreign and domestic conduct must be treated identically. Finally, she contends that distinguishing foreign relevant conduct and subjecting it to a special analysis is best viewed as a means of retaining a measure of discretion in a federal sentencing system struggling with both the potent effect of relevant conduct on sentences and the shrinking judicial discretion over sentences.

Eyewitness testimony is an important, persuasive, and often pivotal element in American trials. Jurors are strongly inclined to believe eyewitnesses, even in the face of other contradictory evidence, such as fingerprints. However, thirty years of psychological research into the workings of human memory have revealed that eyewitness accounts are frequently flawed, either because the witness’s original perception of the event was flawed, or because the memory was subconsciously altered prior to testifying at trial. This, combined with jurors’ inclination to trust eyewitnesses, leads juries to overcredit eyewitness testimony, resulting in false convictions. To help avoid such erroneous outcomes, the legal system must find a way to close the gap between eyewitness accuracy and juror belief in eyewitness accuracy. One controversial option is the use of expert psychological testimony to educate the jury about eyewitness fallibility. In this Note, Jennifer L. Overbeck draws on recent psychological research indicating that while expert testimony may be the best way of educating the jury, it is not successful in all circumstances. The Note argues that lawyers must harness psychological research to determine the circumstances that contribute to effective eyewitness expert testimony and incorporate this into their trial strategies. The Note concludes by suggesting some concrete ways of doing so.

Although it is widely accepted that the Eighth Amendment operates as a broad prohibition against excessive criminal sanctions, neither the courts nor the academic community have presented a unified account of what excessiveness means in the Eighth Amendment context. This absence of any larger theory of the Amendment has produced an increasingly disjointed body of case law, and left the legal community without a method of analyzing excessiveness claims as they arise. The purpose of this Note is to lay the initial groundwork for such a theory. This Note argues that the reason why no comprehensive theory of the Eighth Amendment has been developed is because courts and scholars have not framed their discussion in terms of the two theoretical questions raised by the Amendment’s sweeping prohibition of “excessive” criminal sanctions: (1) what substantive standard of decision should determine the outcomes of specific cases, and (2) what standard of review should courts apply when examining sentencing schemes enacted by the legislative branches? In examining these questions, this Note makes two important insights about the nature of the Eighth Amendment: first, that the substantive standard of decision governing the excessiveness prohibition is necessarily tied to an underlying theory of punishment that provides the normative baseline needed for the excessiveness inquiry; and second, that the appropriate standard of review for a criminal sanction adopted by the legislative branches ultimately must be derived from a theory of judicial review that defines the appropriate role of the courts in a democratic society. By structuring the inquiry in this way, this Note contends that it becomes possible to see the competing policy preferences that are implicated by the selection of one standard over another, and thereby forces us to undertake the difficult task of deciding which of these social values should inform interpretation of the Eighth Amendment.

In this Note, Joi Lakes argues that the 1976 Copyright Act and the rules set forth by the Copyright Office are flawed with respect to defining what constitutes expressive, copyrightable material in a choreographic work. This ambiguity creates an imbalance between the public and private domains, which acts to stifle choreographic innovation instead of encouraging it. In particular, the movements comprising choreographic building blocks that properly belong in the public domain are not defined expansively enough. Current copyright doctrine also fails to emphasize the role of flow—or movement through time—in describing choreography’s expressive element, which is the sine qua non of copyright protection. Erroneous understandings of choreography’s expressive element can result in overprotection of dance works by finding copyright infringement where it does not truly exist. Finally, copyright law’s fixation requirement as currently understood could lead to under-protection for choreography, which is particularly difficult to “fix” in a tangible medium. Lakes argues that these imbalances between copyrightable and public domain material in the current Copyright Act can be rectified by amending it both to clarify the definition of a choreographic work and to liberalize the fixation requirement.

The current notice regimes under the Americans with Disabilities Act and the Family and Medical Leave Act provide insufficient notice to two groups of employees who might avail themselves of the Acts’protections: those who are ignorant or misinformed about their rights under the Acts and those who remain “in the closet” about their disability, consciously choosing to hide their need for accommodation or leave in order to avoid the accompanying stigma. To address these dilemmas, the author proposes a multi-part solution: First, employers should provide individual notice to their workers at regular intervals. Second, employers should notify employees of the Acts’ protections when an employee demonstrates a performance problem resulting from lack of accommodation or leave, as it is at that point that the employee might wish to come “out of the closet” to enjoy the Acts’ protections.

This Note considers prosecutorial charging discretion and its interaction with the no-contact rule. Charging delays instituted in order to continually question suspects outside the presence of counsel have racial and social class implications. The no-contact rule should be modified to prevent prosecutors, once they reasonably believe they have enough evidence to pursue a successful conviction, from continuing to question suspects without charging them. Disciplinary sanctions, however, are a more appropriate remedy for such improper questioning than is suppression of the resulting statements.

In this Note, Lauren Vicki Stark argues that the Supreme Court’s approach to overruling precedent based on “unworkability” is flawed and should be discarded. The Court has listed several factors that may constitute special justifications for overruling, including whether the precedent is “unworkable.” This Note examines each of the cases in which the Court has relied on unworkability to overrule and highlights the problems with the Court’s analysis. The author concludes that, rather than relying on unworkability to overrule its precedents, the Court could have clarified them or, in limited situations, applied the doctrine of justiciability instead.