UCLA Law Review Volume 55, Issue 1


The Path to Recognition of Same-Sex Marriage: Reconciling the Inconsistencies Between Marriage and Adoption Cases

Only five years ago, same-sex marriage was not legal anywhere in the United States. That changed in November 2003, when the Supreme Judicial Court of Massachusetts held in Goodridge v. Department of Health that the state may not deny the protections, benefits, and obligations conferred by marriage to two individuals of the same sex who wish to marry. Advocates of same-sex marriage hoped that the decision in Goodridge would prompt courts in other states to recognize this right as well. During the summer of 2006, however, those hopes were deflated by decisions reached by the highest state courts in New York and Washington. Within a twenty-day period, the New York and Washington courts both held that restricting marriage to different-sex couples is constitu¬tional. In addition, in the wake of the fall 2006 midterm elections, a total of forty-five states now ban same-sex marriage either by constitutional amendment or by statute. In light of these developments, Goodridge seems to have caused a backlash against same-sex marriage, rather than increased acceptance of it. Although numerous commentators have addressed the differences between Massachusetts, on the one hand, and New York and Washington, on the other, less attention has been paid to what these states have in common: Courts in all three states permit same-sex couples to legally adopt children. Given the distinct standards used in same-sex marriage and same- sex adoption cases, little analysis has been done of the similarities and differences between these two sets of cases. This Comment endeavors to fill that gap. By analyzing the reasoning that underlies each set of cases, this Comment reveals glaring inconsistencies. In states that prohibit same-sex marriage but permit same-sex adoption, terms such as “marriage” and “family” and “parents” are defined differently by courts depend¬ing on the context in which they are used. This Comment urges courts to reconcile the inconsistencies by embracing the definitions and reasoning used in the majority of same-sex adoption opinions. If courts adopt this proposal, it may allow them to take the first step to legally recognizing same-sex marriage. While this is certainly not an inevitable outcome, it would create a greater cohesiveness in family law and, more importantly, would grant to all citizens the rights and benefits that accompany marriage.

Dysfunctional Equivalence: The New Approach to Defining "Postal Channels" Under the Hague Service Convention

In recent years, article 10(a) of the Hague Service Convention, which allows for the sending of judicial and extrajudicial documents abroad by postal channels, has proven difficult to apply in the face of commercial and techno¬logical change. The difficulties stem from the fact that the Convention neglects to define the term “postal channels.” In 2006, the Permanent Bureau of the Hague Conference on Private International Law promulgated the newest edition of the Practical Handbook on the Operation of the Hague Service Convention, in which it recommends the adoption of a functional equivalent approach for evaluating whether service via modern alternatives to post, such as private courier, facsimile, or email, constitutes service via postal channels. This Comment critiques the Permanent Bureau’s functional equivalent approach, finding that such an approach likely will not result in a workable definition or a practical set of guidelines. This is because incentives against testing and litigating service by modern alternatives to post are strong. Moreover, judges will likely avoid deciding the issue in the interest of judicial economy. Those cases that are considered by judges will be difficult to decide under the new approach if a foreign country views service as a sovereign act. The Comment concludes by suggesting a revision that eliminates the current ambiguity and instead roots the Convention in practical language that eliminates the need for impractical functional equivalent analyses.

Legal Realism in Action: Indirect Copyright Liability's Continuing Tort Framework and Sony's De Facto Demise

The U.S. Supreme Court’s indirect copyright liability standard, derived in Sony Corp. of America v. Universal City Studios, Inc. from patent law and reasserted in Metro-Goldwyn- Mayer Studios Inc. v. Grokster, Ltd., is widely seen as creating a safe harbor for distributors of dual-use technologies. Yet, when one looks to cases decided since Sony, subsequent legislative enactments, and post-Sony decisions of technology companies in the marketplace, a different reality emerges. This Article explores and explains the broad gulf between the idealized Sony safe harbor and the practical reality. It shows that the law in many respects reflects the tort principles that more generally undergird copyright liability.

The Liberties of Equal Citizens: Groups and the Due Process Clause

When the U.S. Supreme Court, in Lawrence v. Texas, struck down a law criminalizing homosexual sodomy, its decision was seen by the press and other political observers as a major contribution to American public life. The Court’s opinion also caught the attention of commentators on constitutional law, for it drew on the theme of equal citizenship to justify a decision resting on substantive due process. This Article points out that egalitarian values have advanced the development of substantive due process from its beginning a century ago. The theme of equal liberties is visible in the Lochner era, in the incorporation of the Bill of Rights in the Fourteenth Amendment, and in the modern expansion of personal constitutional freedoms.

Does Analyst Independence Sell Investors Short?

Regulators responded to the analyst scandals of the late 1990s by imposing extensive new rules on the research industry. These rules include a requirement forcing financial firms to separate investment banking operations from research. Regulators argued, with questionable empirical support, that the reforms were necessary to eliminate analyst conflicts of interest and ensure the integrity of sell-side research. By eliminating investment banking revenues as a source for funding research, the reforms have had substantial effects. Research coverage of small issuers has been dramatically reduced—the vast majority of small capitali¬zation firms now have no coverage at all. The market for research has become increasingly seg¬mented; institutional investors have access to highly sophisticated and costly information sources, while retail investors are receiving less information than ever. This Article argues that these consequences were predictable. Because research is a public good, and quality research cannot be produced at low cost, the basic business model of the research industry requires firms to subsidize their research operations—especially research that is widely distributed to retail inves¬tors—with other services. Analysts traditionally used investment banking revenues, trading commissions, and proprietary trading to fund their research. These services, in turn, created incentives for analyst optimism. Mandated independ¬ence does not change this market structure, and high-quality research cannot be provided to public investors on a cost-effective basis absent a source of funding. This Article proposes an alternative to mandated independence: a disclosure-based mechanism to manage analyst conflicts of interest. The Article argues that the recent reforms should be replaced by a combination of analyst registration and a new model of analyst disclosure through a Securities and Exchange Commission Analyst Website (SECAW). SECAW would enable firms to subsidize research while providing the information necessary to allow researchers and investors to evaluate the quality of that research. At the same time, SECAW would respond to concerns about segmentation, information access, and non- investment-banking conflicts that have not been addressed by the Global Research Settlement or other regulatory efforts.

When Should We Permit Differential Pricing of Information?

Each year, the UCLA School of Law hosts the Melville B. Nimmer Memorial Lecture. Since 1986, the lecture series has served as a forum for leading scholars in the fields of copyright and First Amendment law. In recent years, the lecture has been presented by such distinguished scholars as Lawrence Lessig, Robert Post, Mark Rose, Kathleen Sullivan, David Nimmer, and Jonathan Varat. The UCLA Law Review has published each of these lectures and proudly continues that tradition by publishing an Article by this year’s presenter, Professor William W. Fisher III.