UCLA Law Review Volume 52, Issue 1

Speech Restraints for Converged Media

Courts have regularly relied on the “special characteristics” of radio and television broadcasts to justify government regulation of the content in those media that has never been allowed for the print media. However, the convergence of media delivery platforms (print, broadcast, telephone, cable, and Internet) has put a severe strain on the viability of this medium-centric model for speech restraints. This Comment proposes an analytical framework that eliminates the need to characterize speech in converged media as more “like print” or “like broadcast” to determine the degree of protection that it merits.

The Myth of Johnson v. M’Intosh

In this Comment, the author considers the popular critique of the Great Case of Johnson v. M’Intosh as racist myth-making. After unpacking Johnson’s uncomfortable marriage of conquest and discovery, Seifert juxtaposes the opinion with Virgil’s Aeneid, western literature’s most famous, and famously ambivalent, establishment narrative. This comparison compels a different theoretical approach to the case. That approach, based on David Hume’s custom-based theory of property, shields Johnson from the Lockean rhetoric of many critics. Johnson, then, is a myth, mixing history with theory to precipitate a national narrative, but it is a myth birthed by sympathy and skepticism as much as by political pragmatism.

Sources of Federalism: An Empirical Analysis of the Court’s Quest for Original Meaning

A debate continues to rage in the academy and on the U.S. Supreme Court about the propriety of originalism as a methodology of constitutional interpretation. In federalism cases both the majority and the dissent on the current Court appear to have embraced originalism, yet their agreement ends there: The Court has consistently divided 5–4 in such cases. What explains the disagreement among Justices who appear to agree that the original understanding of the Constitution is also its current meaning? This Article presents the results of a study of citation patterns in federalism cases since 1970 and demonstrates that the Court’s current majority in such cases gives substantially more weight than the dissent to Anti-Federalist views. To the extent that the majority relies on Federalist views in establishing the original understanding, it is substantially more likely than the dissent to cite Federalist statements that appear to have been made to allay Anti-Federalist fears about the power of the national government or that (at a minimum) demonstrate more solicitude for state autonomy. Conversely, the dissent is substantially more likely than the majority to cite as evidence of the original understanding the more unabashedly nationalistic views of Federalists; the majority rarely cites such statements as evidence of original meaning, choosing instead to discount them as outside the framing mainstream or to read them narrowly or in a context that renders them more federalistic in nature. The results of the study have implications for originalism. Although proponents of originalism have defended the approach on the ground that it constrains judges’ ability to impose their own views under the guise of constitutional interpretation, the study suggests that judges seeking the original understanding are largely unconstrained in their ability to mold the historical record to serve instrumentalist goals.

Beyond Market Share Liability: A Theory of Proportional Share Liability for Nonfungible Products

Twenty-five years have passed since courts first adopted “market share liability,” a theory under which a plaintiff unable to identify the manufacturer of the product that caused his injury can recover on a proportional basis from each manufacturer that might have made the product. Courts have severely restricted the reach of this potentially powerful theory by insisting that it can apply only to products that are perfectly “fungible.” Most products vary from manufacturer to manufacturer, posing different levels of risk, and therefore do not satisfy the fungibility requirement. As a result, courts have applied market share liability to a very small number of products. This Article argues that courts should eliminate the fungibility requirement by recognizing that market share liability is just one variant of a broader concept that the author calls “proportional share liability.” Rather than deny recovery in cases involving products that pose varying degrees of danger, courts should consider whether proportional share liability can be imposed by using information other than market share data to make a reasonable and fair allocation of liability among the defendants. This Article examines the potential application of proportional share liability in a wide variety of contexts, including vaccines causing brain damage, violence fueled by negligent distribution and sales of firearms, disease resulting from exposure to asbestos or tobacco, and damage to spacecraft from collisions with orbital debris.

The Politics of Pro Bono

Pro bono has undergone a profound transformation. Whereas for most of American legal history, pro bono was ad hoc and individualized, dispensed informally as professional charity, within the last twenty-five years it has become centralized and streamlined, distributed through an elaborate institutional structure by private lawyers acting out of professional duty. Pro bono has thus emerged as the dominant means of dispensing free representation to poor and underserved clients, eclipsing state-sponsored legal services and other nongovernmental mechanisms in importance. This Article examines the causes, features, and consequences of pro bono’s institutionalization. It begins with . an analysis of the forces behind pro bono’s institutional rise, emphasizing the role of the organized bar, federal legal services, the nonprofit sector, and big law firms. This Article then maps the contours of pro bono’s institutional architecture, analyzing the structures of organizational collaboration, mechanisms of efficiency, strategies for accountability, and processes of adaptation that define pro bono’s operational identity. It concludes by probing the systemic consequences of pro bono’s new institutional centrality, weighing the pragmatic benefits of leveraged law firm resources against the limitations imposed by the dependence on private lawyers beholden to commercial client interests.

Volume 52, Issue 1