California Law Research Articles

Comparing the ICT industries of Silicon Valley and Route 128: What has law got to do with it?

Silicon Valley's legal foundation in recent years has surfaced on the radar of policy planners who model Silicon Valley's information and communication technologies (ICT) industry. Precisely, the prohibition of covenants not to compete (CNCs) is linked to firm-to-firm knowledge spillovers by way of mobile workers positioned as nodes in a system of innovation. Meanwhile, traditional frameworks support enforcement of CNCs as a way to encourage R&D activities to the worker and to prevent the worker's tacit knowledge and know-how from fleeing. Amidst the battle for the restraint or release of human capital, we present an industrial approach to reconcile the ostensible strife between enforcement and prohibition frameworks. Theoretically, we contend an industrial approach can maximize the policy tools of discorded planners. Moreover, this article newly compares the ICT industries of Silicon Valley and Route 128 to argue that California's law is a unique factor in the greater success of Silicon Valley firms.

When Not Saying NO Does Not Mean Yes: Psychophysiological Factors Involved in Date Rape

To understand how a woman who does not want to be a willing sexual partner can at times acquiesce and not fight the date rape predator, the neurobiology of our responses to threat needs to be understood. Under situations of extreme threat, instead of responding just to danger signals with only the options to fight or flee, we also retain in our nervous system a primitive immobilization response that may reflexively be expressed when our body detects life threat. This primitive defense system is shared not only with other mammals, but also with reptiles, such as the turtle, that immobilize as a primary defensive strategy. The brain makes the decision without awareness, and the relative risks of stimuli are interpreted to be safe, dangerous, or life threatening. The polyvagal theory proposed by Stephen Porges may explain why many rape victims do not actively resist. According to the theory, the act of not responding is an immobilization fear response to life threat, which may be wrongly interpreted by the aggressor as a passive acquiescence. The woman's thoughts, intentions, and feelings are irrelevant—her body shuts down in preparation for severe injury and death. This misunderstanding may be exacerbated if judgment is clouded by alcohol. This discussion of the polyvagal theory supports the recently passed California law (Senate Bill 967) that requires the governing boards of California postsecondary institutions (colleges and universities) to adopt procedures and protocols requiring students to obtain “affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.”

Musculoskeletal Symptoms in Nurses in the Early Implementation Phase of California's Safe Patient Handling Legislation.

Musculoskeletal injuries and symptoms are prevalent in nurses and are largely associated with strenuous patient handling. In 2011, California enacted legislation that required acute-care hospitals to implement safe patient handling (SPH) policies and programs. To assess the early phase of this legislation, we conducted an epidemiological assessment of organizational SPH practices, musculoskeletal symptoms, and perceptions in a random sample of 396 registered nurses. Among those who worked in hospitals and had patient handling duties (n = 220), the 12 month prevalence of work-related musculoskeletal symptoms was 69% (lower back 54%, neck 41%, shoulders 34%, and hands/wrists 26%). Twenty-two percent of the nurses reported that their hospitals had a "no-lift" policy, 37% reported that their hospitals had lift teams, and 61% reported the availability of mechanical lift equipment such as floor or ceiling lifts. Nurses whose facilities employed lift teams were significantly less likely to report low back pain (OR = 0.54, 95% CI [0.30-0.97]). Nurses whose units had ceiling lifts were significantly less likely to report shoulder pain than nurses with no access to lifts (OR = 0.32, 95% CI [0.10-0.98]). Roughly 60% of respondents were aware of the SPH law, and 33% reported changes in their hospital's patient handling policies or programs since the law went into effect. Hospital SPH practices reported by the nurses in our sample were generally sub-optimal, but our findings suggest positive effects of elements required by SPH legislation. These data will serve as the baseline for future evaluation of the impact of this law in California.

The Uncommon Case of Jahi McMath

A 13-year-old patient named Jahi McMath was determined to be dead by neurologic criteria following cardiopulmonary arrest and resuscitation at a hospital in Oakland, California. Her family did not agree that she was dead and refused to allow her ventilator to be removed. The family's attorney stated in the media that families, rather than physicians, should decide whether patients are dead and argued in the courts that the families' constitutional rights of religion and privacy would be violated otherwise. Ultimately, a judge agreed that the patient was dead in keeping with California law, but the constitutional issue was undecided. The patient was then transferred to a hospital in New Jersey, a state whose laws allow families to require on religious grounds that death be determined by cardiopulmonary criteria. Although cases such as this are uncommon, they demonstrate public confusion about the concept of neurologic death and the rejection of this concept by some families. The confusion may be caused in part by a lack of uniformity in state laws regarding the legal basis of death, as reflected in the differences between New Jersey and California statutes. Families who reject the determination of death by neurologic criteria on religious grounds should be given reasonable accommodation in all states, but society should not pay for costly treatments for patients who meet these criteria unless the state requires it, as only New Jersey does. Laws that give physicians the right to determine death by neurologic criteria in other states probably can survive a constitutional challenge. Physicians and hospitals faced with similar cases in the future should follow state laws and work through the courts if necessary.

A Shield to Legitimize Virtually Any Content: Tracking the Video Game Lobby's Political Economic Power

In 2011, the U.S. Supreme Court in Brown v. Entertainment Merchants Association overturned a California law that sought to keep violent video games away from minors. Entertainment Software Association (ESA), the video game industry's trade organization, for years fought legislation aimed at providing parents with more information about extremely violent games. This article analyzes campaign finance records, lobbying reports, trade publications, and court documents to illustrate how ESA uses its power to influence the U.S. regulatory, legislative, and judicial process. By documenting this political economic influence, this article charts interrelated developments regarding the consolidation of ownership and growth of the corporate video game lobby and assesses how ESA political contributions marginalize the public's access to information about violent games.

False Framings: The Co-opting of Sex-Selection by the Anti-Abortion Movement.

Jesudason and Weitz's article examines two public policy debates in California, where both sides of the debate used similar language that had the potential to be detrimental to women. Specifically, they show how anti-abortion crusaders in California used similar language to describe why women's rights should be curtailed as pro-choice advocates use when fighting for more choice and privacy for women's reproductive decisions. This commentary builds upon their article by demonstrating the harm that such co-opting causes to women's rights using the example of sex selective abortion. By examining the legislative history of state and national bills to ban sex-selective abortion, this commentary demonstrates how the anti-abortion lobby has adopted the language of pro-choice advocates quite effectively. Although the framing of this issue as being "woman-protective" is strategic and insincere, such political framing is powerful, as Jesudason and Weitz have noted. Anti-abortion activists have convinced lawmakers in many states that sex-selective abortion is a dire issue in their state and that they must restrict it in order to protect women. In fact, there is no evidence that sex selective abortion is a problem in the United States, yet these frames have been very effective in weakening women's privacy rights. Whenever woman-protective framings are invoked for self-serving purposes, women's rights advocates must work hard to uncover the truth behind these discourses to prevent successful legislative efforts that curtail women's reproductive freedom.

Beyond Ebola Ethics: Do Nurses have a Duty to Treat?

This article explores a significant issue facing nurses. Legal and ethical considerations are explored, looking at the relevant new Rhode Island and California laws, which mandates both a duty to treat and employer responsibilities. The ethical framework of beneficence is discussed. The ANA Code of Ethics is examined and the revisions in 2015 are introduced. Nurses’ rights are outlined, as well as the responsibilities of employers and society. The article ends with additional considerations for nurses and the U.S. It will help nurses to clarify their own beliefs about the current crisis as well as in general regarding the ethics of mandating duty in the face of a pandemic or highly lethal disease.

Editor's Note

In April 2013, the International Monetary Fund (IMF), with little fanfare, released a report with the innocuous title ‘Sovereign Debt Restructuring—Recent Developments and Implications for the Fund's Legal and Policy Framework’ (the ‘April 26 Paper’).1 It has taken a while, but observers of the sovereign debt market are beginning to realize that one particular paragraph of that April 26 Paper may signal a fundamental change in IMF policies in the area of sovereign debt workouts.2 Given the key role that the IMF plays in sovereign workouts, this is a major change to the international financial architecture. Some months ago, under the auspices of the Annenberg Center and the University of Southern California Law School, a group of sovereign debt experts gathered to discuss paragraph 32.3 What follows below draws directly from the report of that group in setting out the bare bones issues relating to paragraph 32.4

Drug-related deaths and the sales of needles through pharmacies

BackgroundProviding needles to people who inject drugs is a well-proven public health response to the transmission of HIV and other blood borne viruses. Despite over a quarter of a century of research, new concerns about potential unintended negative consequences of needle distribution continue to emerge. Specifically, a claim was recently made that the introduction of pharmacy sales of needles was followed by an increase in overdoses in pharmacy parking lots. If true, this would have serious implications for the design of needle access programs, particularly those involving pharmacy sales of needles. MethodsWe examine spatial relationships between drug-related deaths and pharmacies in Los Angeles County (population 9.8 million) before and after the 2007 enactment of a California law allowing pharmacy sales of needles without a prescription. Seven thousand and forty-nine drugs related deaths occurred in Los Angeles county from 2000 to 2009 inclusive. Four thousand two hundred and seventy-five of these deaths could be geocoded, and were found to be clustered at the census tract level. ResultsWe used three methods to examine spatial relationships between overdose death locations and pharmacy locations for two years on either side of the enactment of the pharmacy sales law, and found no statistically significant changes. Among the 711 geocodable deaths occurring in the two years following the change in law, no death was found to occur within 50m of a pharmacy which sold needles. ConclusionThese results are consistent with prior studies which suggest pharmacy sales of needles improve access to needles without causing increased harms to the surrounding community.

The Technique Element in Law

In giving accounts of the nature of law, legal philosophers have, in the fashion of scientists, broken law down into elements, such as legal authority, legal rules, moral aspects of law, and law's coercive features. In the vast literature of legal philosophy, all these elements have been subjected to intensive and illuminating analysis. But the technique element in law2 remains neglected to this day. How does law do what it does? Does the law's methodology consist merely of criminal and civil techniques? Professor Hans Kelsen is one of the few legal philosophers interested in these questions, and his essay, The Law As a Specific Social Technique,3 is a classic on the subject. That essay, which I first read several years ago, initially inspired me to think about these questions. It is especially fitting, then, that the thoughts I offer as a kind of progress report should appear in a special issue of the California Law Review honoring Professor Kelsen.

California's nurse-to-patient ratio law and occupational injury.

To determine whether state-mandated minimum nurse-to-patient staffing ratios in California hospitals had an effect on reported occupational injury and illness rates. The difference-in-differences method was applied: The change in injury rates among hospital nurses after implementation of the law in California was compared to the change in 49 other states and the District of Columbia combined. Data were drawn from the US Bureau of Labor Statistics and the California Employment Development Department, including numerator estimates of injury and illness cases and denominator estimates of the number of registered nurses (RNs) and licensed practical nurses (LPNs) employed in hospitals. Confidence intervals (CIs) for rates were constructed based on assumptions that favored the null hypothesis. The most probable difference-in-differences estimate indicated that the California law was associated with 55.57 fewer occupational injuries and illnesses per 10,000 RNs per year, a value 31.6 % lower than the expected rate without the law. The most probable reduction for LPNs was 38.2 %. Analyses of CIs suggested that these reductions were unlikely to be due to chance [corrected]. Despite significant data restrictions and corresponding methodological limitations, the evidence suggests that the law was effective in reducing occupational injury and illness rates for both RNs and LPNs. Whether these 31.6 and 38.2 % reductions are maintained over time remains to be seen [corrected].

Policy Improves What Beverages Are Served to Young Children in Child Care

BackgroundDuring 2008, we conducted a statewide survey on beverages served to preschool-aged children in California child care that identified a need for beverage policy. During 2011, the US Department of Agriculture began requiring that sites participating in the Child and Adult Care Food Program (CACFP) make drinking water available throughout the day and serve only low-fat or nonfat milk to children aged 2 years and older. During 2012, the California Healthy Beverages in Childcare law additionally required that all child-care sites eliminate all beverages with added sweetener and limit 100% juice to once daily. DesignTo assess potential policy effects, we repeated the statewide survey in 2012. During 2008 and 2012, a cross-sectional sample of ∼1,400 licensed child-care sites was randomly selected after stratifying by category (ie, Head Start, state preschool, other CACFP center, non-CACFP center, CACFP home, and non-CACFP home). ResultsResponses were obtained from 429 sites in 2008 and 435 in 2012. After adjustment for child-care category, significant improvements in 2012 compared with 2008 were found; more sites served water with meals/snacks (47% vs 28%; P=0.008) and made water available indoors for children to self-serve (77% vs 69%; P=0.001), and fewer sites served whole milk usually (9% vs 22%; P=0.006) and 100% juice more than once daily (20% vs 27%; P=0.038). During 2012, 60% of sites were aware of beverage policies and 23% were judged fully compliant with the California law. ConclusionsA positive effect occurred on beverages served after enactment of state and federal policies. Efforts should continue to promote beverage policies and support their implementation.

Progressive Cities: Models for Using Public Land for Community Gardens

Community gardens enhance the quality of life and well-being of people living in cities. Known benefits include decreased crime rates, decreased blight, decreased poverty levels, decreased rates of obesity, increased access to good food for poor residents, increased jobs and job-training, and increased educational opportunities. Cities across the nation with the common goal of sustainability have formed partnerships with various entities in various configurations in furtherance of this progressive ideal: sustainable living through community gardening. This paper sets out the local laws, state laws, and funding mechanisms cities have created or used to create community gardens. Part I will provide some background and a brief overview of the community garden concept in general. Part II will explain: (1) the types of entities that create community gardens, citing examples of successful city partnerships; (2) the logistics involved in creating community gardens, with a focus on land acquisition and basic planning, again citing examples of various approaches taken by cities; and (3) city policies and ordinances that have created, funded, or otherwise supported community gardens, again providing examples of the process and achievements of select municipalities in this area. Part III will list current California Law on point for cities to draw upon in their community garden efforts, summarize the challenges and barriers facing city leaders in their sustainability efforts, and offer ten basic recommendations for cities interested in sustainability.

Controlling an invasive plant at the edge of its range: towards a broader understanding of management feasibility

Invasion biologists often think about feasibility of weed control in purely ecological terms, while land managers’ feasibility definitions are further informed by social, policy, and institutional considerations. We use the case of cheatgrass (Bromus tectorum) in the Eastern Sierra Nevada in California to examine the origins and practical significance of differences between scientific and managerial definitions of feasibility. A serious invasive weed and a major ecological threat to the region, cheatgrass in the Eastern Sierra still exists in the kinds of low-density patches that are technically amenable to containment through active management. Yet land managers in this region dominated by public land are not using active management. We conducted a study of the reasons for the apparent disconnect between management potential and management realities, combining semi-structured interviews of public land managers in the region with analysis of the policy and institutional landscape in which land managers operate. We found that managers are concerned about cheatgrass impacts on the region but face a number of barriers to the deployment of useful spread prevention techniques. The de-prioritization of cheatgrass, which is not listed as a noxious weed under either California or federal law, along with resource constraints exacerbated by such policy de-prioritization form one important set of barriers. Certain substantive and procedural requirements of federal and state environmental law form another barrier: they can limit swiftness and flexibility of managerial action and make managers more hesitant to launch such action; they also provide a venue for public opposition to herbicide-based management or directly restrict managers’ access to useful herbicide treatments. We end with some thoughts on increasing the feasibility of cheatgrass control in eastern California. Many of these are broadly relevant to improving invasion management on public lands.

Evaluating the effectiveness of the law banning handheld cellphone use while driving

Cellphone use while driving is one of the major concerns in traffic safety, and numerous researches found that cellphone use while driving can increase traffic collision risk. With growing popularity of cellphone use, many states in the United States enacted the law banning handheld cellphone use while driving in recent years. However, there is a debate on effectiveness of the law. In this study, we analyze the six-year collision data between 2006 and 2010 in the state of California to examine the timing of a significant change in the trend of cellphone related collisions. We adopt the turning point analysis technique without imposing a prior belief on whether or when such a change has occurred. Both the frequentist and Bayesian approaches are applied to four different groups, including the all cellphone collision group and three subgroups characterized by cellphone usage. The result shows that the turning points coincides with the timing of enforcement of the handheld law in California, except for the subgroup containing hands-free related collisions only. We applied the same method to two confounding factors including driving under influence and CD/radio use, and find that the turning points do not agree with the cellphone related collisions. Although a more comprehensive set of confounding factors needs to be considered to establish a causal relationship between the handheld law and cellphone related collisions, coincidence between the handheld law and the turning point suggests that the law should be considered as one of the primary factors in cellphone related collisions reduction.

Risk-Based Review of California’s Water-Recycling Criteria for Agricultural Irrigation

AbstractCalifornia currently recycles treated wastewater at a volume of approximately 8.0×108 m3 of water per year, with a potential to recycle an additional 1.9×109 m3 per year. A key challenge in promoting the expansion of water recycling for agricultural purposes was addressing the perceived concern about whether recycled water produced in conformance with California law is protective of public health. The California Department of Public Health (CDPH) established an expert panel to consider the concern. The panel found, based on quantitative microbial risk assessment (QMRA), that the annualized median risks of infection for full tertiary treatment ranges from 10−8 to 10−4 (for human enteric viruses Cryptosporidium parvum and Giardia lamblia, and Escherichia coli O157:H7) based on the assumption of daily exposure. The panel found that risk estimates are consistent with previous CDPH estimates and concluded that current agricultural water recycling regulations do not measurably increase public health risk.

On a New Theory of Justice

On a New Theory of Justice

Latino Officers and Their Involvement in Police Shootings

With an emphasis to examine Latino officers who have been involved in police shootings, this study analyzed twenty-one years (1990–2010) of data from one of the largest law enforcement departments in the United States. The study compared Latino population trends in the United States, the State of California, a southern California County, and focused on the representativeness of Latinos in one southern California law enforcement department. The analysis further investigated police shootings by the race of the officer, narrowing the focus to determine whether an increasing representativeness of Latino officers had any effect on police shootings. Results revealed that while the percentage of White officers in the department decreased and Latino officers increased, so too did their involvement in police shootings. Most surprisingly, Latino officer-involved shootings outpaced their growth in the department by a factor of 3.3 and in the county by a factor of more than 4.

Hybrid net: the regulatory framework of ICANN and the DNS

The Internet Corporation for Assigned Names and Numbers (ICANN) is responsible for the management and coordination of the internet domain name and address space, which are critical resources necessary for internet connectivity. Though international in reach since it cooperates with persons, organizations and governments in many countries, ICANN was set up as a private non-profit organization under California law. This article examines the role, legal nature and basis of ICANN and the domain name system (DNS). It first maps and analyses the various regulatory instruments underlying ICANN and the DNS. What emerges is that, very often several and different modes of regulation, both formal and informal, are required to address a particular issue satisfactorily. The article examines whether and to what extent these different types of instruments co-exist and interrelate as one coherent regulatory framework. To do so, this article draws upon Teubner’s notion of hybrid networks and makes an analogy with modern theories on how various sources of law apply within a legal system. In particular, it follows and builds upon Ost and van de Kerchove’s notion of network or ‘mesh’ regulation. To explain the contractual web at the heart

Institutional and Political Sources of Legislative Change: Explaining How Private Organizations Influence the Form and Content of Consumer Protection Legislation

This article explores how private organizations influence the content and meaning of consumer protection legislation. I examine why California forced consumers to use a private dispute resolution system that affords consumers fewer rights, while Vermont adopted a state‐run disputing structure that affords consumers greater rights. Drawing from historical and new institutional theories, I analyze twenty‐five years of legislative history, as well as interviews with drafters of the California and Vermont laws, to show how automobile manufacturers weakened the impact of a powerful California consumer warranty law by creating dispute resolution venues. As these structures became institutionalized in the lemon law field, manufacturers reshaped the meaning of legislation. Unlike California, the political alliances in Vermont and a different developmental path led to a state‐run dispute resolution structure. I conclude that how social reform laws are designed and how businesses influence social reform legislation can increase or decrease the achievement of a statute's social reform goals.