Volume 33 Number 3 -- April 2000

TABLE OF CONTENTS

ARTICLES

CALIFORNIA’S ANTI-SLAPP LEGISLATION: A SUMMARY OF AND COMMENTARY ON ITS OPERATION AND SCOPE

by Kathryn W. Tate

In this Article, Professor Kathryn W. Tate presents a detailed analysis of section 425.16 of the California Code of Civil Procedure, California’s Anti-SLAPP (Strategic Lawsuits Against Public Participation) provision. Professor Tate explores section 425.16 from its birth in the California legislature through the most recent 1999 amendments to the statute. After analyzing the statute through seven years of California and federal case law, Professor Tate highlights remaining issues and offers commentary on the report of the Judicial Council on the statute’s effectiveness as well as the Council’s recommendations for amendments to the statute.

BUTTERFIELD RIDES AGAIN: PLAINTIFF’S NEGLIGENCE AS SUPERSEDING OR SOLE PROXIMATE CAUSE IN SYSTEMS OF PURE COMPARATIVE RESPONSIBILITY

by Paul T. Hayden

Defendants in virtually all states with a pure comparative negligence system may avoid liability by successfully arguing that the overwhelmingly negligent plaintiff’s conduct constitutes a superseding or sole proximate cause of the plaintiff’s own harm. Most commentators are critical of this practice as undercutting pure comparative negligence systems. Professor Paul T. Hayden argues that the widespread use of these doctrines to bar seriously negligent plaintiffs from recovery does not undercut pure comparative systems but rather serves as an ameliorative safety valve to preserve pure systems of comparative responsibility. The author presents a brief history of the use of superseding or sole proximate cause as a rationale to bar plaintiffs in the pre-comparative era, followed by a current jurisdictional survey explaining which states use the doctrine in this way and which do not. Professor Hayden also provides a functional analysis of the doctrines, focusing on the pure comparative states, before concluding that the use of the doctrines helps preserve pure comparative systems.

THE TRUTH BEHIND LEGAL DOMINANCE FEMINISM’S “TWO PERCENT FALSE RAPE CLAIM” FIGURE

by Edward Greer

In this Article, Mr. Edward Greer criticizes the claim by Legal Dominance Feminists that only two percent of rape claims are false, a claim that has been ubiquitously repeated in academic literature. The author demonstrates indirectly that the false rape claim figure while indeterminable must be higher than the two percent claimed. Ultimately, by examining the sources cited by the proponents of this claim, the author reveals that the two percent figure stems from a single, unsubstantiated source. Given the unreliability of this claim, the author also cautions that any substantive changes in rape law that may be advocated to accommodate this claim would amount to retroactive strict liability and disproportionately burden African Americans.

SYMPOSIA

A TRIBUTE TO JUDGE A. LEON HIGGINBOTHAM JR.

A SYMPOSIUM TRIBUTE TO JUDGE A. LEON HIGGINBOTHAM JR.: THE MENTOR AND HIS MESSAGE

by Margaret Chon

A LIFE WELL LIVED: REMEMBRANCES OF JUDGE A. LEON HIGGINBOTHAM JR. -- HIS DAYS, HIS JURISPRUDENCE, AND HIS LEGACY

by Colleen L. Adams, Rubin M. Sinins, & Linda Y. Yueh

In this Article, Colleen L. Adams, Rubin M. Sinins, and Linda Y. Yueh share their views about working with Judge A. Leon Higginbotham Jr. As research associates for “the Judge,” they were able to learn not only about Judge Higginbotham as a judge and teacher, but also as an extraordinary individual. Their joy of working with the Judge is apparent as they write about everything from his publications and testimony before Congress to his wonderful sense of humor and good cooking. Judge Higginbotham worked tirelessly for political empowerment and affirmative action, trying to make America a better place for all people. He will be sorely missed but his legacy will live on.

AN UNFORGETTABLE YEAR CLERKING FOR JUDGE HIGGINBOTHAM

by L. Barry Costilo

In this Article, L. Barry Costilo shares his impressions of Judge A. Leon Higginbotham Jr. Mr. Costilo worked for “the Judge” as law clerk during the Judge’s first year as a federal district judge. As Mr. Costilo comments, the Judge served as a role model for many people, including his law clerks, who admired the Judge’s courage and sense of fairness both inside and outside the courtroom. The Judge’s contribution to legal scholarship is vast but the Judge’s personal attributes proved equally influential in gaining the respect and admiration that many people continue to hold for him.

A. LEON HIGGINBOTHAM JR.: WHO WILL CARRY THE BATON?

by F. Michael Higginbotham & José Felipé Anderson

In this Article, F. Michael Higginbotham and José Felipé Anderson share a conversation they had with Judge A. Leon Higginbotham Jr. In this conversation, the Judge expressed some concern about the direction of the civil rights movement and the little progress being made to advance civil rights since the early 1960s. Although many prominent civil rights advocates are now gracing the halls of prestigious institutions such as Harvard University, many others are unable to command the media exposure that is necessary to sustain the movement, a problem that is exacerbated as many of the movement’s old guard retire from public service.

AT THE CROSSROADS OF LAW AND TECHNOLOGY

PREFACE

AT THE CROSSROADS OF LAW AND TECHNOLOGY

by Alan Heinrich, Karl Manheim, & David J. Steele

CLOSED CORP. V. OPEN SESAME: A SIMULATED INFRINGEMENT CASE ARISING IN CYBERSPACE

by David J. Steele & Karl Manheim

DEFENDANTS’ MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

by Donald I. Baker, Joseph Kiniry, & Lena Smith

SUMMARY OF EXPERT TESTIMONY BY LINUS TORVALDS

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

by Terrence P. McMahon, Monte M.F. Cooper, Vincent M. Pollmeier, & Roman Ginis

SUMMARY OF EXPERT TESTIMONY BY EDWARD W. FELTEN

DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

by Donald I. Baker, Joseph Kiniry, & Lena Smith

ORDER

by the Honorable Diarmuid F. O’Scannlain

REPORTER’S TRANSCRIPT

AT THE CROSSROADS OF LAW AND TECHNOLOGY: KEYNOTE ADDRESS, OCTOBER 23, 1999

by Ira Magaziner

COMMENTS

HOLIER THAN THOU: ATTACKING THE CONSTITUTIONALITY OF STATE RELIGIOUS FREEDOM LEGISLATION

by Mark J. Austin

In City of Boerne v. Flores, the United States Supreme Court struck down the Religious Freedom Restoration Act (RFRA), Congress’s attempt to mandate the use of strict scrutiny against generally applicable laws that are challenged under the Free Exercise Clause. Although the decision in Boerne was based ostensibly on grounds of separation of powers and federalism, it contained overtones of prudential concerns present in Employment Division v. Smith, where the Court held that strict scrutiny was inappropriate in free exercise challenges to generally applicable laws. Since Boerne, a number of states have passed legislation that mirrors RFRA, raising the question of whether the Supreme Court is likely to find a new, broader constitutional basis for striking these laws down as well. This Comment argues that the Court is likely to do so and outlines possible constitutional grounds on which the Court could base its decision.

STRIVING FOR PERFECTION: THE REFORM PROPOSALS FOR COPYRIGHT-SECURED FINANCING

by Ara A. Babaian

Arising out of the conflicts between the Copyright Act and the Uniform Commercial Code, the current law for copyright-secured financing makes it very difficult for lenders to perfect a security interest in copyrights. Ever since National Peregrine, Inc. v. Capitol Savings & Loan Ass’n was decided in 1990, parties to a secured transaction wanting to perfect a security interest in a copyright have had to formally register the copyright used as collateral and then record the security interest in that copyright at the Copyright Office. This Comment analyzes the problems presented by this two-prong system for perfection and discusses the current reform proposals. This Comment concludes that Congress should enact a purely federal remedy for the problems associated with the creation and perfection of security interests in copyrights.