Loyola of Los Angeles Law Review

Idea Theft and Independent Creation: A Recipe for Evading Contractual Obligations

Jonathan Richard Sandler — Fri, 08 Feb 2013 12:05:24 PST

Ideas are valuable, especially in Hollywood, and those who rely on their ideas for income need protection. Because ideas are not protected by federal copyright law, the solution in California has been to protect idea disclosure with implied-in-fact contracts. A common defense to a claim of idea theft is the independent-creation defense. This defense permits an idea recipient to escape liability by showing that he did not use a plaintiff’s idea but instead used an idea from an independent third party. The problem with this defense, however, is that it fails to recognize the possibility that an idea recipient could actually be using the idea from both the idea purveyor and the independent third party simultaneously. As a result, defendants can wrongfully evade one valid implied-in-fact contractual obligation by demonstrating that they simply have a second contract. This Note proposes a change to the analysis that courts currently apply in implied-in-fact contract claims, which will remedy this practice and ensure better protection of idea purveyors’ rights.

Runaway Guarantors: Reevaluating the Scope of the Sham Guaranty Defense

Ndidi Onyebuchukwu — Fri, 08 Feb 2013 12:05:23 PST

Guarantors are responsible to lenders for the debts that they guarantee. Unfortunately, some guarantors try to avoid this responsibility by asserting the sham guaranty defense, a defense with poorly defined criteria and an inconstant application. The current lack of clarity surrounding the sham guaranty defense has rendered it susceptible to abuse by runaway guarantors and left lenders uncertain about how to best structure their commercial real estate loan transactions. Against this backdrop, this Note surveys the current state of the sham guaranty defense in California, focusing both on the historical development of the defense and the common factual scenarios in which it is asserted. Next, this Note explores how the California courts’ uneven treatment of the defense has resulted in confusion, unfair results, and an expansion of the defense that favors guarantors. Finally, this Note argues that the California Legislature should intervene and provide guidance to the courts about the proper scope of the sham guaranty defense. To assist in this effort, this Note offers proposed statutes that legislators and other interested parties may consider in their attempts to provide some much-needed stability to this area of commercial lending law.

Deference or Destruction? Reining in the Noerr-Pennington and State Action Doctrines

Karen Roche — Fri, 08 Feb 2013 12:05:22 PST

This Article focuses on two limits to federal antitrust law—the Noerr-Pennington and state action doctrines. These doctrines aim to balance the right to petition and the independent sovereignty of the states with the goals of antitrust law. Therefore, these doctrines protect petitioning and state action from liability, even where such action is anticompetitive in nature or motive and thwarts the goals of the antitrust laws. While it seems clear that these two exceptions to federal antitrust law are rooted in the First Amendment and federalism, the Supreme Court has not clearly delineated the sources or extent of the doctrines. Because of this, the doctrines are far broader than is necessary to give deference to these principles. This Article examines the harm that these overly broad exceptions cause consumers and proposes that the Court narrow the doctrines by tailoring them to what is required by the First Amendment and federalism.

Pay Phone Protections in a Smartphone Society: The Need to Restrict Searches of Modern Technology Incident to Arrest

Marty Koresawa — Fri, 08 Feb 2013 12:05:22 PST

Since their development in the 1980s, cell phones have become ubiquitous in modern society. Today, cell phones feature large data-storage capacities and can access various types of personal media, making them pocket-sized windows into intimate aspects of an individual’s life. Yet many courts treat cell phones as if they were ordinary physical containers, allowing police officers to search the contents of an arrestee’s cell phone incident to an arrest. The warrantless search of electronic devices incident to an arrest, however, cannot be justified on the same grounds as a similar search of physical containers. The government does not have a strong interest in searching a cell phone incident to an arrest because the search is exceedingly unlikely to reveal a concealed weapon or prevent the destruction of evidence. Moreover, given the personal nature of cell phones, individuals have a much greater expectation of privacy in their cell phones than they do in physical containers stored on their persons. This Note argues that search of a cell phone incident to arrest should no longer be blindly governed by the same precedent that controls other searches incident to arrest, and it urges the Supreme Court to engage in a fresh and thoughtful balancing of the interests at stake. Only by creating new doctrine can the Supreme Court adequately protect these important interests and restore fidelity to the Fourth Amendment principles that should govern searches incident to arrest.

An Antitrust Narcotic: How the Rule of Reason Is Lulling Vertical Enforcement to Sleep

Nicole McGuire — Fri, 08 Feb 2013 12:05:21 PST

Over time, the Supreme Court has adopted a laissez faire attitude toward antitrust enforcement, which now threatens to end vertical enforcement altogether. Since the inception of the Sherman Act, the Court has limited the application of Section 1 to only those contracts that endorse unreasonable restraints on trade. In doing so, the Court voiced a preference for using the defendant-friendly rule of reason over the strict per se standard when determining reasonableness. Then in 2007, the Court took the final step in relaxing vertical enforcement by mandating that courts evaluate all vertical restraints under the rule of reason. Regrettably, the rule of reason often amounts to per se nonliability in practice, thereby frustrating the very objectives that the Sherman Act was enacted to protect. This Article argues that the Court, through its leniency toward vertical enforcement and its failure to provide sufficient guidance about how to apply the rule of reason, has endorsed per se legality for all vertical restraints. It then proposes that in order to resume an optional level of enforcement, the rule of reason should be replaced by a rebuttable presumption of illegality.

Shedding Light on the Federal Courts' Treatment of Horizontal Restraints Under Section 1 of the Sherman Antitrust Act

Allen G. Haroutounian — Fri, 08 Feb 2013 12:05:20 PST

The federal judiciary’s application of Section 1 of the Sherman Antitrust Act to horizontal restraints remains one of the least defined areas of antitrust jurisprudence. Part of this problem stems from the Supreme Court’s failure to articulate clear guidelines since shifting from the widely used per se standard to the more comprehensive rule of reason and quick look approaches. Additionally, because the rule of reason analysis—the predominant standard used by federal courts today—places great emphasis on a defendant’s market power, the costs and burdens make it difficult for the plaintiffs to prove Section 1 violations.

This Article surveys recent lower federal court decisions to see how courts today analyze Section 1 claims, demonstrating that while considerable confusion still exists in the application of the per se, rule of reason, and quick look approaches to horizontal restraints, a small number of federal courts are beginning to apply these approaches with greater clarity. This Article also argues that the quick look approach should be abandoned because the per se approach and the rule of reason already provide sufficient means for analyzing horizontal restraints. Finally, this Article offers suggestions that shift the rule of reason analysis away from relying heavily on a defendant’s market power to determine whether a horizontal restraint violates Section 1.

Almost But Not Quite Perfect: The Past, Present, and Potential Future of Horizontal Merger Enforcement

Marleina Paz — Fri, 08 Feb 2013 12:05:19 PST

Since the beginning of his administration, President Obama and his colleagues at the Federal Trade Commission (FTC) and the Department of Justice (DOJ) have espoused a renewed vigor for horizontal merger enforcement. While this more aggressive stance is appropriate given that the U.S. economy is currently recovering from a recession, the disparity between the government agencies’ and the federal courts’ approaches to examining proposed horizontal mergers poses an obstacle to successful legal analysis in this area. This Article presents four solutions that would close the gap in horizontal merger enforcement between the courts and the agencies—as well as between the agencies themselves—and achieve the government’s antitrust goals of fostering competition and promoting consumer welfare. These solutions regarding the adoption of the new Horizontal Merger Guidelines, consistency between the FTC and the DOJ, the serious consideration of efficiency and efficiency-related arguments, and the utilization of behavioral economics would improve the analysis of potential business combinations. This is especially important in rapidly developing industries that, because of their inherent characteristics, pose unique challenges to determining when a horizontal merger will harm the economy.

The Judicial Contraction of Section 2 Doctrine

Diana De Leon — Fri, 08 Feb 2013 12:05:19 PST

A critical safeguard of the competitive process, Section 2 of the Sherman Antitrust Act prohibits unilateral conduct that results in the acquisition or maintenance of monopoly power. The Supreme Court in recent years has seemingly continued to defend monopoly power as “an important element of the free-market system,” but it has failed to provide clear instructions to guide lower courts in their analyses of Section 2 claims. This Article examines the state of Section 2 jurisprudence with an emphasis on lower federal courts, focusing on their interpretations of Supreme Court decisions dealing with unilateral refusals to deal and price squeezes. In 2003, the Court narrowed the scope of Section 2 liability on Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, suggesting that monopolists generally have no duty to continue dealing with rivals. In the years following the decision, lower federal courts have struggled to uniformly interpret and apply Trinko in their determinations of what conduct is unlawfully predatory or exclusionary under Section 2. Additionally, it has become clear that lower federal courts have adopted the Court’s desire to avoid overdeterrence, as their constructions have ultimately made it more difficult for private plaintiffs to win monopolization cases against dominant firms. This Article urges antitrust courts to adapt to a changing global economic climate and, in doing so, proposes four avenues for reform that range from theoretical to practical. In light of shrinking enforcement efforts and the increasing obstacles faced by private plaintiffs in federal courts, fundamental change is necessary to protect competition and consumers.

Antitrust Symposium—Introduction: So What Else Is New?

Daniel E. Lazaroff — Fri, 08 Feb 2013 12:05:18 PST

The Truth Behind Echols v. State: How an Alford Guilty Plea Saved the West Memphis Three

Kaytee Vota — Mon, 07 May 2012 23:18:09 PDT

After they spent eighteen years in prison for the notorious 1993 murders of three young boys, the West Memphis Three were released on August 19, 2011, after they entered Alford pleas. Under an Alford plea, a defendant can voluntarily, knowingly, and understandingly plead guilty while he simultaneously proclaims his innocence. But with little evidence linking the West Memphis Three to the crime and with recent DNA evidence likely establishing their innocence, was it appropriate for the Circuit Court of Craighead County, Arkansas, to allow the men to even plead guilty? This Comment argues that the circuit court in Echols v. State took a step in the wrong direction when it allowed the West Memphis Three to enter Alford pleas. This Comment discusses the background of Alford pleas and examines the inherent problems with their application, particularly in cases that involve DNA evidence. Finally, this Comment suggests a method of judicial reform that urges judges to proceed with caution and conduct a stricter factual-basis inquiry in order to prevent the injustice that arises when they allow innocent defendants to plead guilty.

New Media and the News Media: Too Much Media, LLC v. Hale and the Reporter's Privilege in the Digital Age

Joshua Rich — Mon, 07 May 2012 23:18:08 PDT

Rooted in the U.S. Constitution and state statutes known as shield laws, the reporter’s privilege has long guarded news gatherers who wish to keep their sources secret. The majority of states have codified shield laws. These statutes support the First Amendment, whose free-press provision allows journalists to act without government control. But the boundaries of the reporter’s privilege have become blurred. Who, in this electronic era of citizen journalism, qualifies as a reporter for the purposes of shield-law protection? Can a blogger enjoy the same benefits that a typical print, radio, or television journalist receives? This Comment examines the case of Too Much Media, LLC v. Hale, in which the Supreme Court of New Jersey took an early step toward answering those questions. In holding that the state’s shield law did not protect a woman who posted her reporting on an Internet message board, the court was among the first to apply the reporter’s privilege in cyberspace. But it should have done more in order to preserve the vitality of shield laws—and of the democratic values that underpin the First Amendment—in the age of new media.

Connecting the Dots: The Ninth Circuit's Refusal to Find Probable Cause in Dougherty v. City of Covina

Carmelo Tringali — Mon, 07 May 2012 23:18:08 PDT

The relationship between molesting children and possessing child pornography is significant, and the U.S. Supreme Court’s decision in Illinois v. Gates sets a low threshold requirement for probable cause in justifying search warrants. Nonetheless, federal circuit courts disagree as to whether evidence of child molestation is sufficient in itself to establish probable cause for a search warrant for child pornography. In Dougherty v. City of Covina, the Ninth Circuit furthered this circuit split by siding with the Second and Sixth Circuits in determining that such evidence is insufficient to establish probable cause justifying a search warrant. This Comment examines the Ninth Circuit’s ruling in Dougherty and argues that the court incorrectly refused to find probable cause justifying the search warrant and set a dangerous precedent in doing so.

The Descent of Responsible Procreation: A Genealogy of an Ideology

Julie A. Nice — Mon, 07 May 2012 23:18:07 PDT

Just as societal practices related to marriage and procreation have changed remarkably during the past several decades, the amount of litigation regarding same-sex marriage has increased substantially. Over time, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.

This Article traces the genealogy of responsible procreation. Rooted in religion, the defense was once rejected as a justification for limiting heterosexuals’ constitutional rights. Later, it appeared as a justification of the federal Defense of Marriage Act. Soon, courts split on its constitutionality: the high court of Massachusetts found it to be “unpersuasive” while other state appellate courts used it as a justification for their rejections of challenges to same-sex-marriage bans. Finally, with the first federal trial and subsequent Ninth Circuit decision on the constitutionality of California’s Proposition 8, the responsible-procreation defense succumbed to the overwhelming weight of evidence against its logic.

As a result, the emerging trend is that both executive officials and courts are rejecting the defense and concluding that same-sex-marriage bans are drawn not to further proper legislative ends but to make same-sex couples and their children unequal to everyone else.

Health Care Issues Affecting People with an Intersex Condition or DSD: Sex or Disability Discrimination?

Julie A. Greenberg — Mon, 07 May 2012 23:18:07 PDT

People with an intersex condition or a Difference of Sex Development (DSD) depend on health care professionals for critical medical treatment. Many intersex activists assert that some current medical practices are not in the best interests of patients with an intersex condition. They contend that greater safeguards should be adopted to ensure that the rights to liberty and autonomy of people with a DSD are respected.

Thus far, intersex advocacy has focused on extralegal strategies. The movement is at a point, however, where legal challenges to current medical protocols could provide an additional tool to improve life-altering health care practices. This Article examines whether the intersex movement could effectively use legal frameworks developed by feminists, the LGBT movement, and disability activists to advance its goal of modifying current medical procedures that are based on sex, gender, sexual orientation, and disability stereotypes.

HIV Discrimination in Dental Care: Results of a Testing Study in Los Angeles County

Brad Sears et al. — Mon, 07 May 2012 23:18:07 PDT

Thirty years after HIV was first identified, for the majority of those infected in the United States, effective combination therapies to combat HIV have turned the disease into a manageable chronic condition. But HIV discrimination has still proven intractable in the field of health care. For example, a series of studies has revealed that 46 percent of skilled nursing facilities, 55 percent of OB/GYNs, and 26 percent of plastic surgeons in Los Angeles County refuse to provide services to any HIV-positive patient, in violation of state and federal law.

This Study examines HIV discrimination among dentists in Los Angeles County. For people living with HIV/AIDS (PLWHA), dental care is particularly important because problems in the mouth may be the first symptoms of an HIV infection and can also signify disease progression; routine, proper dental care can have a significant impact on oral and general health. This Study reveals that 5 percent of dentists in Los Angeles County have a blanket policy of refusing to accept any HIV-positive patient, which is substantially lower than the finding for other health care providers. However, this Study also suggests that PLWHA who are poor and the most vulnerable, including women and people of color, face higher rates of discrimination. This Study goes on to explain that dentists can effectively and safely treat PLWHA, and it identifies why they are legally and ethically obligated to provide such care. After reviewing prior social science research on HIV discrimination by dentists, this Study presents its methodology and findings. Finally, it concludes by exploring potential reasons for why the documented discrimination rate is lower for dentists than it is for other health care providers in Los Angeles County, and it argues that future enforcement and education efforts should be targeted toward specific categories of dentists.

LGBT Identity: A Demographer's Perspective

Gary J. Gates — Mon, 07 May 2012 23:18:06 PDT

In a recent study, the Author of this Article estimated that the self-identified lesbian, gay, bisexual, and transgender (LGBT) community makes up 3.8 percent of the American population. The Author’s estimate was far lower than many scholars and activists had contended, and it included a relatively high proportion of persons self-identifying as bisexuals. This Article responds to two of the central criticisms that arose in the controversy that followed. First, in response to claims that his estimate did not account for people who are in the closet, the Author describes how demographers might measure the size of the closet. Second, in response to those who either ignored the reported large incidence of bisexuality or misconstrued the meaning of that incidence, the Author considers how varying frameworks for conceptualizing sexual orientation might alter the ratio of lesbian or gay individuals to bisexuals. This Article goes on to offer observations about the challenges and implications that are associated with the varying estimates of the size of the LGBT population. And it concludes by arguing that, today, the size of the LGBT community is less important than understanding the struggles of its members and informing crucial policy debates with facts rather than stereotype and anecdote.

Evidence of Persistent and Pervasive Workplace Discrimination Against LGBT People: The Need for Federal Legislation Prohibiting Discrimination and Providing for Equal Employment Benefits

Jennifer C. Pizer et al. — Mon, 07 May 2012 23:18:06 PDT

Lesbian, gay, bisexual, and transgender (LGBT) people have experienced a long and pervasive history of employment discrimination. Today, more than eight million people in the American workforce identify as LGBT, but there still is no federal law that explicitly prohibits sexual orientation and gender identity discrimination against them.

This Article begins by surveying the social science research and other evidence illustrating the nature and scope of the discrimination against LGBT workers and the harmful effects of this discrimination on both employees and employers. It then analyzes the existing legal protections against this discrimination, which include constitutional protections for public sector workers, court interpretations of Title VII’s ban on sex discrimination, state and local antidiscrimination laws, and corporate policies. This Article determines that, while these laws and policies provide important protection, the current system is incomplete, confusing, and inadequate. This Article next considers empirical research showing that employers do not offer employees with a same-sex spouse or partner the same access to family benefits that they offer to employees with a different-sex spouse, and it examines court decisions finding that a denial of equal benefits is unlawful employment discrimination.

Based on this research and legal analysis, the Article concludes that a federal law like the Employment Non-Discrimination Act (ENDA), a bill pending in Congress that would prohibit sexual orientation and gender identity employment discrimination, is needed. To serve its purpose consistently, however, the bill’s current exemption of employee benefits should be removed. To be sure, ending all forms of unequal treatment based on sexual orientation or gender identity is warranted and feasible, and doing so will have positive effects for both employees and employers.

Introduction: Talking Around Marriage

Douglas NeJaime — Mon, 07 May 2012 23:18:05 PDT

Empty Protection and Meaningless Review—The Need to Reform California's Stagnant Capital Clemency System

Brittney Cunningham — Wed, 18 Apr 2012 13:54:29 PDT

This Note examines California’s stagnant capital clemency system and its ability to properly function as a fail safe against miscarriages of justice. Finding that the state’s clemency system lacks transparency, appears arbitrary, and is strained by political pressure, this Note argues that California’s system of wide discretion fails to provide a meaningful review of clemency petitions. To restore clemency’s failsafe function, this Note urges California to create a clemency board and provide procedural guidelines for the board to follow when addressing petitions. This Note asserts that by enacting these reforms, California will invigorate its stagnant clemency system and ensure that clemency petitions are meaningfully reviewed.

Game Over for Regulating Violent Video Games? The Effect of Brown v. Entertainment Merchants Ass’n on First Amendment Jurisprudence

Garrett Mathew-James Mott — Mon, 16 Apr 2012 15:59:47 PDT

As early as 1976, video games started to incorporate aspects of violence, such as striking enemies with a vehicle or using explosives to destroy a structure. Still, initially, courts were reluctant to assign the same constitutional protections to video games that they had granted to other protected media like motion pictures and written and musical works. But as technology progressed, courts, too, matured, becoming more open to the notion that video games should be a form of protected expression. Yet, some courts lost sight of the First Amendment’s vision and reconsidered their earlier decisions in which they upheld the constitutionality of video game expression. This prompted the U.S. Supreme Court, in the first case that dealt with the First Amendment’s protection of video games, to remedy nearly four decades of confusion and unify the law in Brown v. Entertainment Merchants Ass’n. After the Court’s decision in Brown, it is safe to assume that, at society’s current level of technological progress, courts are likely to hold that children’s use of video games is expressive conduct that the First Amendment protects. But if technology becomes “too advanced” and mechanics such as virtual reality, three-dimensional space, and infrared movement simulators become the technological norm, the Court may have to reexamine its reasoning in Brown before too long.