Volume 35 Number 3 -- April 2002

TABLE OF CONTENTS

ARTICLES

COMMENTS OF THE CALIFORNIA GRAND JURORS’ ASSOCIATION ON PROFESSORS VITIELLO AND KELSO’S TENTATIVE RECOMMENDATION REFORM OF CALIFORNIA GRAND JURY STATUTES

by the California Grand Jurors’ Association

The California Grand Jurors’ Association (CGJA) offers this response to Professors Michael Vitiello and J. Clark Kelso’s Tentative Recommendation Reform of California’s Grand Jury Statutes. The Vitiello and Kelso piece was originally published on the Web page of the Capital Center for Government Law and Policy of McGeorge Law School. A revised version, entitled Reform of California’s Grand Jury System, was published in the Loyola of Los Angeles Law Review, Volume 35, Issue 2. The CGJA reviews and interprets some of the critical findings from its own survey of grand juries conducted in 2001, and applies these findings against the recommended reforms. The CGJA, as perhaps the preeminent authority on California grand juries, contributes its own empirical perspective to the reform debate and critiques the suggested revisions on a section-by-section basis. The Article concludes with an alternative, less sweeping, suggestion for reform.

UCC ARTICLE 8: WILL THE INDIRECT HOLDING OF SECURITIES SURVIVE THE LIGHT OF DAY?

by Russell A. Hakes

Professor Russell A. Hakes examines the intricacies of legal rules recently adopted to govern the indirect holding system which developed to accommodate high volume securities trading. His analysis reveals several provisions that unnecessarily increase risks to those holding securities indirectly. These risks result from new and subtle protections for those financing the securities industry. Professor Hakes suggests improvements to the provisions that would reduce unnecessary risks to investors, while maintaining protections essential to the indirect holding system. The proposed changes also make the provisions easier to understand and to apply. Professor Hakes suggests that failure to eliminate the increased risks could contribute to a restructuring of securities markets by creating disincentives to holding securities indirectly.

CREDIT ENHANCEMENTS IN COMMERCIAL LEASING TRANSACTIONS: LESSONS LEARNED FROM THE FRONT LINES OF DOT.COM BANKRUPTCIES AND PROPOSED LEGISLATIVE RESOLUTIONS

by Anton N. Natsis, Michael S. Greger, and Michael E. McFadden

Commercial law experts Anton N. Natsis, Michael S. Greger, and Michael E. McFadden address the various issues that arise when landlords lease space to “credit-risky” tenants, specifically High-Tech tenants. They describe the credit enhancement instruments used to secure these leases and discuss various issues affecting the ability of these credit instruments to withstand the bankruptcy process in the midst of the rise in corporate bankruptcies. The authors also discuss practical considerations in drafting and negotiating credit enhancements regarding the landlord’s ability to recover in the event of a default. Finally, the authors provide recommendations to modify the Bankruptcy Code, which would clarify issues regarding the enforceability of credit instruments and would, consequently, promote leases to High-Tech companies by landlords.

CRIMES AGAINST THE HEART: RECOGNIZING THE WRONGS OF FORCED SEX

by Samuel H. Pillsbury

In this article, Professor Samuel H. Pillsbury argues that despite considerable change in recent years, traditional paradigms of rape and romance still govern many persons’ assessment of incidents of forced sex between acquaintances. Many still assume that rape involves strangers attacking victims with near-lethal violence so that when a man coerces sex from a female acquaintance by nondramatic means, this is labeled “bad romance,” not rape. The modern emphasis on rape as a crime of violence proves counterproductive here by indirectly reinforcing traditional assumptions. The author argues for more emphasis on the sexual aspects of the victim’s injury and perpetrator’s motivation. The victim’s primary injury is to her ability to trust and to form intimate relationships, an injury that results from the sexual nature of the attack. The offense should be considered a crime against the heart to provide a compelling emotional picture of the sexual/spiritual harm done. With respect to male perpetrators, the connection between common male understandings of sex and common sexual patterns tends to corroborate perpetrator reports of a sexual motivation. The author contends a more sexual understanding of the offense will address the central (and fallacious) assumption of skeptics that if the incident was sexual, it cannot be rape. The article concludes with a review of obstacles to acceptance of the sexual view, ranging from the dangers of a return to earlier patriarchal views of sexual responsibility to challenges to traditional male and female gender roles and sexual identity.

SYMPOSIUM

AT THE CROSSROADS OF LAW & TECHNOLOGY: THIRD
ANNUAL CONFERENCE

INTRODUCTION

by Karl Manheim

This Introduction, the court order, and the briefs that follow are a continuation of the joint program by California Institute of Technology and Loyola Law School’s Program for Law and Technology. In his Introduction, Professor Karl Manheim presents the fictional case of NuGenEra v. Dolly, which was the focus of the Third Annual At the Crossroads Conference and Symposium. Professor Manheim provides a brief overview of the case and discusses the law and morality issues raised by NuGenEra v. Dolly, including its implications for property and privacy rights as well as informed consent. Finally, he briefly evaluates the current system of granting patents and concludes with the court’s findings.

UNITED STATES PATENT F6,635,271

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

by Robert Berliner, Margaret Churchill, Katharine Ip, Olga Kay, Andrea Lin, and Paul Updike

DEFENDANT DOLLY’S MOTION FOR SUMMARY JUDGMENT: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

by Joe Andrieu, Lir Burke, Mimi H. Chiang, Elizabeth Hong, Catherine Polizzi, and Michael Wise

DEFENDANT DOLLY’S OPPOSITION REPLY TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

by Joe Andrieu, Lir Burke, Mimi H. Chiang, Elizabeth Hong, Catherine Polizzi, and Michael Wise

PLAINTIFF’S OPPOSITION REPLY TO DEFENDANT DOLLY’S MOTION FOR SUMMARY JUDGMENT

by Robert Berliner, Margaret Churchill, Katharine Ip, Olga Kay, Andrea Lin, and Paul Updike

MEMORANDUM AND ORDER

by the Honorable Marilyn Hall Patel

COMMENTS

CERCLA: THE PROBLEMS OF LIMITING CONTRIBUTION CLAIMS FOR POTENTIALLY RESPONSIBLE PARTIES

by Daniel C. Chang

In 1980, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). However, since then a major controversy has developed as to whether a party who is potentially responsible for environmental contamination can sue other potentially responsible parties for contribution without first facing an administrative order or a cost recovery action. This Comment concludes that the common law interpretation of the word “contribution” does not require a prior or pending action for a claim of contribution. Furthermore, legislative history analysis illustrates that it is unclear as to whether Congress intended for such a requirement to exist before a contribution claim could be asserted. The Comment argues that reading such a requirement into the statute would be wholly inconsistent with CERCLA’s policies of mandating that responsible parties pay for their environmental contaminations.

REGULATION FD: THE YEAR THAT PASSED AND THE YEARS AHEAD

by John Tishbi

This Comment examines the importance of Regulation FD (Fair Disclosure) to American markets and investors. Regulation FD prohibits corporations from selectively disclosing “material, nonpublic information” to “securities market professionals.” The author first discusses the securities environment prior to Regulation FD, highlighting the inherent inequities that existed as a consequence of selective disclosure practices. The author then analyzes the state of affairs after Regulation FD, arguing that the grim predictions of the rule’s detractors have not been realized. He also contends that, after the enactment of Regulation FD, the performance of securities analysts improved since selective disclosure practices could no longer be relied upon. Finally, the Comment concludes by discussing the positive effects of Regulation FD on the investment community, the problems that may arise in the future, and the importance of preserving the rule in its current form.