Volume 33 Number 1 -- November 1999

TABLE OF CONTENTS

ARTICLES

SATISFACTION NOT GUARANTEED: CALIFORNIA’S CONFLICTING LAW ON THE USE OF ACCORD AND SATISFACTION CHECKS

by Bryan D. Hull & Aalok Sharma

Professor Bryan D. Hull and Aalok Sharma present a detailed analysis of the conflicting law in California governing accord and satisfaction checks. Expanding upon and updating an article written by Professor Hull in 1998, the authors examine the current state of law in California and the conflict that arises when attempting to simultaneously apply the Civil and Commercial Code sections regarding accord and satisfaction. The authors analyze current case law and public policy arguments, and conclude that the Commercial Code sections should govern, though the conflict in the statutes still remains on the books.

VOTING RIGHTS ACT LITIGATION AND LOS ANGELES COUNTY JUDICIAL ELECTIONS: MYTHS AND REALITIES

by Robert L. Hess

In this Article, Judge Robert Hess examines case law from several federal jurisdictions which, in the author’s opinion, would be relevant to determine if any Voting Rights Act violations would result from the unification of California’s superior and municipal courts in Los Angeles County. While not commenting on the outcome of any Voting Rights Act litigation due to unification, Judge Hess believes that plaintiffs alleging a Voting Rights Act violation face a substantial and expensive evidentiary burden. While not precluding a successful challenge, Judge Hess suggests that the burdens placed on plaintiffs to show both liability and an appropriate remedy may be determinative in finding no Voting Rights Act violations in Los Angeles County judicial elections.

INTERESTED DIRECTOR CONTRACTS AT COMMON LAW: VALIDATION UNDER THE DOCTRINE OF CONSTRUCTIVE FRAUD

by Norwood P. Beveridge

Professor Norwood P. Beveridge presents a detailed analysis of the history of the common law rules regarding interested director contracts. The author disputes the near universal belief that in 1880, such contracts were absolutely voidable at the option of the corporation or its shareholders. Professor Beveridge contends that such contracts were governed by the doctrine of constructive fraud. Under this doctrine, interested director contracts were valid so long as the directors did not take undue advantage of their positions as directors. Professor Beveridge then analyzes the case law to demonstrate when such contracts were valid and when they were voidable. He concludes that the history of the rule comports with basic business concepts, and that a true understanding of this history will further the enforcement of fair and useful interested director contracts.

COMMENTS

STICKS, STONES, AND SIMPLE TEASING: THE JURISPRUDENCE OF NONCOGNIZABLE HARASSING CONDUCT IN THE CONTEXT OF TITLE VII HOSTILE WORK ENVIRONMENT CLAIMS

by James C. Chow

In analyzing Title VII sexual harassment claims, courts look to whether the harassing conduct is sufficiently severe or pervasive to establish a hostile work environment. Oftentimes, the conduct in question falls below the mark into a category commonly referred to as simple teasing. Yet, this type of behavior may nevertheless inflict harm on the claimant as an individual and on the workplace as a whole. This Comment examines judicial assumptions underlying the determination of whether a hostile environment was present in particular cases. The author concludes that courts should tighten up their analyses by eliminating play as an excuse for not recognizing conduct as harassment.

MIGRATORY LAWYERS IN PRIVATE PRACTICE: SHOULD CALIFORNIA APPROVE THE USE OF ETHICAL WALLS?

by Dorothy M. Gibbons-White

Is imputed disqualification of an entire law firm always the best solution to conflicts of interest brought from one private law firm to another? California courts take a broad view of professional responsibility rules and do not permit the use of screening, or “ethical walls,” to cure such conflicts. Some jurisdictions, however, do allow the practice. In this Comment, the author explores the problems and benefits of both screening and imputed disqualification and the historical development of both approaches to successive conflicts. The author concludes that California should adopt a more flexible approach to the problem of successive conflicts and permit screening of conflicted lawyers in private-law-firm-to-private-law-firm moves.

HIGH-SPEED CHASE ON THE INFORMATION SUPERHIGHWAY: THE EVOLUTION OF CRIMINAL LIABILITY FOR INTERNET PIRACY

by Shahram A. Shayesteh

With 150 million users now online, the Internet is currently experiencing a population explosion, expected to reach an estimated 720 million by 2006. The Internet’s sheer size and anonymous nature, however, allows computer pirates to freely trade in illegal software without fear of apprehension. In response to pressure from copyright owners who refused to make their works available on the Internet without reasonable assurances against piracy, Congress passed the No Electronic Theft Act (“NET Act”) and the Digital Millennium Copyright Act (“DMCA”) in 1998. However, in its “high-speed” attempt to curtail the problem of Internet piracy, Congress appears to have given more consideration to the interests of copyright-based industries than to those of the general public. This Comment examines the state of criminal liability for Internet piracy in light of these two acts. The author asserts that while the NET Act necessarily fills a void in copyright law, the DMCA is too vague, overbroad, and potentially more harmful than helpful to the public.

SUBJECTIVE AND OBJECTIVE: YOU CAN’T HAVE ONE WITHOUT THE OTHER: A RECOMMENDATION FOR MODEL RULE 7.3

by Betina A. Suessmann

In drafting Model Rule 7.3 of the Model Rules of Professional Conduct, the American Bar Association sought to codify the United States Supreme Court’s holding in the infamous ambulance chasing case of Ohralik v. Ohio State Bar Association. However, in doing so, the ABA drafted a rule containing only a subjective analysis of the motive behind the attorney’s solicitation. This Comment argues that if the ABA truly sought to mirror the Court’s approach, and accordingly draft an ethics rule that could safeguard the public from the dangers associated with attorney solicitation, it would have drafted a rule containing both a subjective and an objective analysis. The author posits that in order to better serve public policy, the Ethics 2000 Committee of the American Bar Association should consider revising and redrafting Model Rule 7.3 to contain both a subjective and an objective analysis.