UCLA Law Review Volume 54, Issue 2


The Fact and Fiction of Grokster and Sony: Using Factual Comparisons to Uncover the Legal Rule

In its recent and highly anticipated decision in MGM Studios, Inc. v. Grokster, Ltd., the U.S. Supreme Court appeared reluctant to make any significant changes to copyright law. The Court avoided comment on the vigorously debated definition of the “substantial noninfringing uses” standard from Sony Corp. v. Universal City Studios, Inc., affirmed the Sony doctrine without modifying it, and characterized the new inducement theory as a classic case of common law secondary liability. But in trying to limit the impact of its opinion, the Grokster Court said too little. It left significant ambiguities in its holding and many unanswered questions in copyright law. The ambiguities and gaps in the legal rule of Grokster will make it very difficult for technology companies to predict their liability for copyright infringement. Instead of relying on the law of Grokster, technology companies need to focus on the facts of Grokster and identify which facts proved determinative of Grokster’s liability. By piecing together a rule from the facts of the case, technology companies can structure their conduct to avoid future liability for contributory copyright infringement and can prevent the stifling effect of an uncertain legal rule. This Comment examines the Sony and Grokster opinions and the reasons why the legal rule from Grokster is too unclear to be predictive. The Comment then closely analyzes the Sony and Grokster opinions and identifies the key determinative facts that distinguish the two cases. Using these key facts, the Comment then turns to an analysis of the potential liability of three emerging technology companies, and presents a new view of Sony and Grokster from a factual perspective.

Hepatitis C in Prisons: Evolving Toward Decency Through Adequate Medical Care and Public Health Reform

Hepatitis C (HCV) in prisons is a public health crisis tied to current drug policy’s emphasis on the mass incarceration of drug users. Prison policy acts as a barrier to HCV care by limiting medical care for the infected, especially drug users, and by inhibiting public health measures addressing the epidemic. This Comment argues that courts mistakenly limit prisoners’ Eighth Amendment right to basic medical care when they defer to prisons that apply HCV policies as categorical rules of treatment. Where current standards of care mandate individualized patient evaluation for treatment, prison policies that eschew this principle exhibit deliberate indifference to prisoners’ medical needs. Additionally, this Comment looks beyond deliberate indifference to contemporary standards of adequate medical care and prisoner reentry, proposing (1) that evolving standards of decency require greater care than existing Eighth Amendment standards articulated by the U.S. Supreme Court, and (2) that prisoner reentry policy holds the potential for a shift toward public health reform of prisons. Ultimately, this Comment argues that HCV in prisons implicates a set of critical challenges calling for a fundamental rethinking of the prison as a medical provider, a public health institution, and a part of the community.

What Welfare Requires From Work

Work is central to much of life and to many areas of law, including recent transformations in the American welfare state. Despite this pervasive importance, work is notoriously difficult to define. Yet doing so is essential to the design and functioning of a work-based welfare system. This Article provides the first comprehensive analysis of how to define work for the purpose of satisfying welfare work requirements. Work should be understood contextually, its meaning shaped by the underlying normative justifications for linking work to transfer eligibility. Starting from this premise, the Article probes what should count as work according to three major types of justification for work requirements: those emphasizing self-sufficiency, self-improvement (work’s noneconomic benefits), and reciprocity. Each work rationale leads to distinct—and often conflicting—work definitions. Deciding which to adopt requires hard choices between competing normative approaches to work and poverty. This conflict belies the superficial consensus in favor of work requirements in the abstract. Thinking systematically about work in context also opens up new critical perspectives on particular activities. On all accounts, work is less easily identified with paid employment than commonly assumed, something borne out by the actual practices of work-based programs. To illustrate this, the Article concludes by sketching a new avenue for feminist analysis of family caretaking as work, one that exploits rather than rejects a link between work and self-sufficiency.

Executive Aggrandizement in Foreign Affairs Lawmaking

This Article analyzes the claimed power of the president to create federal law on the foundation of the executive’s status as the constitutional representative of the United States in foreign affairs. Executive branch advocates have claimed such a power throughout constitutional history. In the most recent act of this historical drama, President Bush last year issued a surprise “Determination,” which asserted that executive powers implied from Article II of the U.S. Constitution permit the president both to create and to unilaterally enforce the foreign affairs obligations of the United States under international law. The Article first sets the context with a summary of the wide array of practical powers of the president in matters of foreign affairs. Unfortunately, the Constitution’s text provides only limited guidance on the president’s legal powers on this score. Nonetheless, as the Article describes, the supposed constitutional silence has motivated numerous presidents to assert a domestic lawmaking authority to advance executive branch policy preferences in foreign affairs. The broad claims of presidential power by the present Bush Administration have revived these historical controversies with particular vigor. With this background, the Article develops three core principles of executive lawmaking on the foundation of the foreign affairs obligations of the United States: (1) that the Constitution does not vest in the president a general, discretionary lawmaking power in foreign affairs, even to enforce formal rights recognized in or formal obligations owed under international law; (2) that the president nonetheless may obtain such a power through an express or implied delegation from the U.S. Congress, including through the vehicle of a treaty; and (3) that the Constitution itself delegates to the president certain powers in foreign affairs, but the domestic incidents of these powers are both few and limited, and must yield to congressional power in any event.

The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines

n two recent opinions, Blakely v. Washington and United States v. Booker, the U.S. Supreme Court effectively invalidated the binding nature of sentencing guidelines used by many states and the federal government over the past thirty years. Not surprisingly, numerous commentators have asserted that Blakely and Booker profoundly altered the nature of sentencing in the United States. But these claims have been made without any meaningful empirical consideration of whether viable alternatives exist. This Article fills that gap. It explores the extent to which voluntary, nonbinding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid “impermissibly” taking into account a defendant’s race or sex. It also compares such guidelines to the binding guidelines found constitutionally impermissible in Blakely and Booker. In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that binding guidelines did, especially with respect to sentence variation. For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 35 percent for violent crimes and 21 percent for property crimes. By comparison, the analogous results for binding guidelines are a 57 percent drop for violent crimes and a 54 percent drop for property crimes. For the use of impermissible factors, the results are more ambiguous; binding guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing. Voluntary guidelines are not the only option available to the states in a post-Blakely world: States can rely on sentencing juries or forms of expanded mandatory minimums, for example. And it remains an open empirical question whether, in the end, voluntary guidelines work better than these alternatives. But voluntary guidelines nonetheless appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely and Booker.