Volume 32 Number 2 -- January 1999

TABLE OF CONTENTS

ARTICLES

TRADITIONAL CONCEPTS AND NONTRADITIONAL CONCEPTIONS: SOCIAL SECURITY SURVIVOR’S BENEFITS FOR POSTHUMOUSLY CONCEIVED CHILDREN

by Gloria J. Banks

Professor Gloria J. Banks explores and analyzes the ethical, moral, and legal issues raised by modern assisted reproductive techniques as they relate to the determination of paternity and social security survivor’s benefits for posthumously conceived children. Professor Banks examines and evaluates posthumous conception and the parental prerogative related to it. She discusses whether or not Congress ever intended to include posthumously conceived children as beneficiaries of social security survivor’s insurance and argues that Congress must take the lead in resolving this uncertainty. She concludes that Congress should enact an expanded view of dependency to include this class of children.

MISAPPROPRIATION OF HUMAN EGGS AND EMBRYOS AND THE TORT OF CONVERSION: A RELATIONAL VIEW

by Judith D. Fischer

Professor Fischer discusses the misappropriation of reproductive material and its lifelong psychological implications. The author argues that the courts should recognize the tort of conversion in this context. A relational view of the problem is applied in examining the tort of conversion and its application to misappropriation of eggs and embryos. Professor Fischer concludes that conversion claims should, therefore, be allowed in these cases.

DENIAL OF REGULATORY ASSISTANCE IN STRANDED COST RECOVERY IN A DEREGULATED ELECTRICITY INDUSTRY

by Elizabeth A. Nowicki

As the electricity industry begins to deregulate and competition continues to evolve, the electric companies that once held monopolies in the industry struggle to maintain their dominant positions and clamor for regulatory assistance in recouping their stranded costs—costs that often come from inefficient management and poor investment choices. Elizabeth Nowicki examines the issue of whether these companies should receive regulatory assistance in recovering stranded costs. After discussing the history of the regulated electricity industry and detailing the initial emergence of competition in the industry, Ms. Nowicki presents three alternative solutions to the stranded cost problem: allowing full recovery of the stranded costs through regulatory assistance, allowing partial recovery of the stranded costs, or completely denying regulatory assistance in the recovery of stranded costs. Ms. Nowicki examines each option and explains who will ultimately benefit from each solution. The author argues former monopolists could legally be denied regulatory assistance in stranded cost recovery, and she delineates why, from an economic standpoint, that is the most desirable option.

CAUTION! ESTOPPEL AHEAD: CLEVELAND V. POLICY MANAGEMENT SYSTEMS CORPORATION

by Lawrence B. Solum

Cleveland v. Policy Management Systems Corporation will present the United States Supreme Court with the opportunity to make its first modern pronouncement on the doctrine of judicial estoppel, also known as preclusion against the assertion of inconsistent positions. The author suggests that the Court should not decide Cleveland on judicial estoppel grounds. The doctrine is seldom invoked, highly controversial, and poorly defined in the federal circuits that have adopted it. Moreover, the doctrine is inconsistent with the search for truth, which is the hallmark of American civil procedure. Finally, the contemporary doctrines of claim and issue preclusion eliminate the need for a distinct doctrine of judicial estoppel.

NOTE AND COMMENTS

FREE SPEECH VS. FREE PRESS: ANALYZING THE IMPACT OF NELSON V. MCCLATCHY NEWSPAPERS, INC. ON THE RIGHTS OF BROADCAST JOURNALISTS

by Tom K. Ara

The recent trend in journalism is for media corporations to restrict journalists’ outside political speech and activities. In 1997 the Washington State Supreme Court in Nelson v. McClatchy Newspapers, Inc. held that a newspaper was exempt under the First Amendment from state laws prohibiting these types of restrictions. This Note analyzes and criticizes the Washington Supreme Court’s reasoning. The author argues that upholding restrictions based on journalistic objectivity and the appearance of objectivity is unsound. After analyzing the negative impact Nelson has on broadcast journalism, the author discusses some alternatives to requiring journalists to be politically abstinent, such as openness and subjective newsgathering. The author posits that courts should protect broadcast journalists’ political freedoms by acknowledging the alternative methods the press can use to maintain its credibility.

INTELLECTUAL PROPERTY IN THE BALANCE: PROPOSALS FOR IMPROVING INDUSTRIAL DESIGN PROTECTION IN THE POST-TRIPS ERA

by Richard G. Frenkel

In 1994 the United States agreed to implement changes in its laws to conform with TRIPs, the GATT international intellectual property agreement. President Clinton stated that current intellectual property laws sufficiently protected industrial design, and no changes were made to existing law. This Comment examines current copyright, design patent and trade dress law and concludes that President Clinton was wrong—industrial design is underprotected due to confusion, uncertainty and hostility in the courts. The author makes two proposals for improving industrial design protection: Congress could either expand architecture copyright laws to cover industrial design or create a fourth intellectual property regime for design protection. Legislators considering changes should remember the balance desired in all intellectual property laws between strong protection to spur creativity and sufficient public access to existing works.

INEQUALITIES IN CALIFORNIA’S PUBLIC SCHOOL SYSTEM: THE UNDERMINING OF SERRANO V. PRIEST AND THE NEED FOR A MINIMUM STANDARDS SYSTEM OF EDUCATION

by Hanif S. P. Hirji

The California Supreme Court in Serrano v. Priest held that inequalities in public school funding due to reliance by the school districts on local property taxes as their primary source of revenue violated the Equal Protection Clause of the Federal Constitution and of the California Constitution. Through its decision, the California Supreme Court attempted to achieve equality in the standard of education provided by all public schools. However, more than twenty years later, these inequalities persist for a number of reasons, including the passage of Proposition 13, the Gann limits contained in Proposition 4, the ability of the school districts to raise funds through their own initiatives, and the unequal amount of funds expended by the school districts for direct educational expenses. This Comment proposes that rather than focusing on funding school districts equally, California should instead focus on establishing and implementing minimum educational standards to assure that each student receives a strong basic education.

FINDING A WORKABLE EXCEPTION TO THE WORK MADE FOR HIRE PRESUMPTION OF OWNERSHIP

by Chau Vo

Under the Copyright Act of 1976, initial ownership of a copyright vests in the intellectual creator of a work. The work made for hire doctrine is an exception to this general rule. Under the work made for hire doctrine, it is an employer, or commissioning party, who owns the copyright by virtue of the presumption created in section 201(b) of the Copyright Act. This Comment explores the rationale behind the work for hire doctrine and argues that the presumption of ownership in an employer should be excepted where the employer materially breaches an employment agreement with its employee.