UCLA Law Review Volume 53, Issue 4

What International Experience Can Tell U.S. Courts About Same-Sex Marriage

In recent years a growing number of countries, including Canada and South Africa, have recognized a right to same-sex marriage. As voters in the United States pass state laws to ban same-sex marriage, international materials seem to offer a natural source of support for a contrary position. The Supreme Court’s decision in Lawrence v. Texas, which changed the legal landscape for same-sex marriage claims, could also offer precedent for the use of international comparisons in future cases. This Comment examines three common approaches to the judicial use of international materials in order to decide which approaches allow courts to benefit most from comparative analysis, while remaining consistent with precedent and minimizing the inherent dangers of this method. After discussing same-sex marriage developments in several countries, the Comment suggests how each of the three approaches to using comparative materials would apply in same-sex marriage cases, and concludes that the experiences of countries like the Netherlands, Belgium, South Africa, and Canada can provide evidence that same-sex marriage will not have catastrophic consequences for society.

Reaffirming McClain: The National Stolen Property Act and the Abiding Trade in Looted Cultural Objects

The clandestine excavation of “cultural objects” to feed the international art market has become an indisputable problem. However, the scale of the problem—and potential solutions—are hotly contested. In the United States, the debate over how best to protect these objects has come to focus on the relationship between the National Stolen Property Act (NSPA) and the “found-in-the-ground” laws that foreign nations employ to claim them. The NSPA criminalizes trafficking in stolen property; found-in-the-ground laws declare national ownership of cultural objects located within a nation’s territory, forbid their export, or both. Yet because the NSPA criminalizes trafficking in stolen property without defining the term “stolen,” it is not inevitable that U.S. courts should hold that found-in-the-ground laws can provide the basis for a cognizable NSPA claim. In what is known as “McClain doctrine,” U.S. courts since the 1970s have applied the NSPA to foreign found-in-the-ground claims. However, recent events—in the courts and in the news—indicate that the time has come to reexamine the legitimacy and utility of McClain doctrine. Despite the doctrine’s many critics, this Comment argues that it remains sound as a matter of both law and policy. By giving foreign found-in-the-ground laws a limited domestic impact, McClain doctrine helps to prevent looting internationally without placing an unacceptable burden on the cultural objects trade. Moreover, the doctrine helps to resolve a tension inherent in U.S. law—which provides foreign cultural objects with only limited protections but places greater restrictions on the trade in objects of domestic origin.

My Library: Copyright and the Role of Institutions in a Peer-to-Peer World

Today’s technology turns every computer—every hard drive—into a type of library. But the institutions traditionally known as libraries have been given special consideration under copyright law, even as commercial endeavors and filesharing programs have begun to emulate some of their functions. This Article explores how recent technological and legal trends are affecting public and school-affiliated libraries, which have special concerns that are not necessarily captured by an end-consumer-oriented analysis. Despite the promise that technology will empower individuals, we must recognize the crucial structural role of intermediaries that select and distribute copyrighted works. By exploring how traditional libraries are being affected by developments such as filesharing services, the iTunes Music Store, and Google’s massive digitization project, this Article examines the implications of legal and technological changes that are mainly not directed at libraries, but are nonetheless vital to their continued existence.

Government Secrets, Constitutional Law, and Platforms for Judicial Intervention

American law has yet to reach a satisfying conclusion about public access to information on government operations. But recent events are prompting reconsideration of the status quo. As our current system is reassessed, three shortfalls in past debates should be overcome. The first involves ignorance of foreign systems. Other democracies grapple with information access problems, and their recent experiments are illuminating. Indeed they expose two additional domestic weaknesses. One is a line we have drawn within constitutional law. Courts and commentators tend to treat constitutional issues of public access separately from those of executive discretion to withhold information, but these matters should be seen as parts of an integrated system. When they are, it is difficult to constitutionalize one without the other. The final deficiency concerns the boundary between constitutional and ordinary law. In a very practical sense, constitutional law and judicial intervention in this field should turn on the character of nonconstitutional law—whether nonjudicial actors have built an adequate “platform” for judicial action. That connection is not obvious but a defensible access system is impossible without confronting it. This Article aims to remedy these three mistakes, and it presents a method for evaluating judicial platforms in the information access context and beyond.

Reflections on the Science and Law of Structural Biology, Genomics, and Drug Development

The Patent Act is now over a half-century old, and many observers have become concerned that it is not responsive to the needs of emerging industries or to the changing landscape of science. In this Article, we look at this issue in the context of the life sciences and examine how patent doctrine has reacted as the fields of proteomics, genomics, and structural biology have advanced. We find many missteps along what we call the subject matter-inventiveness-scope-exemption trajectory. Patents now protect subject matter such as genes and proteins. These advances no longer represent particularly difficult scientific challenges. But because this subject matter lies far upstream, the patents on these advances have strong potential to block drug development. Although attempts have been made to narrow the scope of upstream patents to permit competitive pharmaceutical research, patentees have fought back with new claiming strategies and with new arguments for curtailing use of their inventions for experimental purposes. In this Article, we argue that a more realistic appraisal of the underlying science is needed, one that takes account of the automation of early stage research and recognizes that the place for patenting is downstream—when long, convoluted, and risky creative efforts are made to convert genetic and proteomic knowledge into viable commercial products. Pushing patents downstream is not only more defensible from the perspective of the underlying science, it is also desirable socially, for it would increase public access to the fundamental building blocks of scientific knowledge and allow competitive basic research to flourish.