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Congress passed the Visual Artists Rights Act (VARA) in 1990 with hopes that a national system of moral rights would serve the purposes of (1) complying with the Berne Convention; (2) providing a uniform system of moral rights protections; (3) guaranteeing personal moral rights; and (4) encouraging art preservation. However, because VARA does not continue to provide consistent nationwide moral...

Because American courts do not traditionally provide for a prevailing party to recover attorneys' fees, the finance of civil lawsuits presents numerous problems for litigants. Insurance and contingent fees solve some of these problems, but in recent decades legislatures have in a number of instances provided for partial fee shifting. Such fee-shifting statutes require courts to set lawyers' fees...

This Essay is a slightly expanded version of the inaugural Mellinkoff Lecture in Law and Humanities, presented at the UCLA School of Law last April in honor of the memory of Professor David Mellinkoff, the distinguished author of ground-breaking work on the nature of legal language. It addresses four related questions. What is the nature of the kind of speech and expression that realizes most...

While political speech-speech intended to influence political decisions-is afforded the highest protection under the First Amendment, adjudicative speech-speech intended to influence court decisions-is regularly and systematically constrained by rules of evidence, canons of professional ethics, judicial gag orders, and similar devices. Yet court decisions can be as important, both to the...

Current thinking about trademark law is dominated by economic analysis, which views the law as a system of rules designed to promote informational efficiencies. Yet the economic analysis has failed to explain, because it is unequipped to do so, a number of concepts of fundamental importance in the law, most notably the concepts of trademark "distinctiveness" and trademark "dilution." This Article...

Unlike most states, California generally prohibits noncompete agreements between an employer and its employees through section 16600 of the California Business and Professions Code. In recent years, state and federal courts in California have encountered noncompete agreements that contain choice of law clauses specifying the law of a state that allows reasonable noncompete agreements. When...

Slippery slopes have been the topic of a spate of recent literature. In this Article, the authors provide a general theory for understanding and evaluating slippery slope arguments and their associated slippery slope events. The central feature of the theory is a structure of discussion within which all arguments take place. The structure is multilayered, consisting of decisions, rules, theories...

Most Americans receive their healthcare from a managed care organization (MCO), which makes state regulation of MCOs a significant policy issue. Most Americans also obtain their MCO membership through an employer-sponsored benefits plan subject to federal regulation. Consequently, courts must determine whether and to what extent federal law preempts state MCO regulation. Over the last quarter...

This Article argues that corporate status became popular in the nineteenth century as a way to organize production because of the unique manner in which incorporation permitted organizers to lock in financial capital. Unlike participants in a partnership, shareholders in an incorporated enterprise could not extract capital from the firm without explicit approval of a board of directors charged...

In Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court held that an undocumented immigrant who has been fired in retaliation for exercising his right to engage in union organizing activity must nevertheless be denied the remedy of backpay. The majority reasoned that awarding backpay to vindicate the National Labor Relations Act (NLRA) would run afoul of conflicting provisions of the...

A new constitutional design is emerging in Mexico to address investment and expropriation disputes. Assurance of the rule of law, understood as independent legal process to resolve disputes, is a key element. Although the rule of law assumed growing importance as Mexico’s historical expropriations progressed, questions persisted as to its effective application. Mexico’s opening to global...

The North American Free Trade Agreement (NAFTA) has two faces: the real and the symbolic. Although the “real” NAFTA—tariff-free trade, increased investments, and new mechanisms for cooperation on environmental protection within North America—has been substantially successful, NAFTA as a symbol of disappointed hopes for a better life and fear of globalization continues to resonate in the popular...

U.S. immigration law is premised on the fundamental idea that it is permissible, desirable, and necessary to restrict immigration into the United States and to treat borders as a barrier to entry rather than a port of entry. In this Article, Kevin Johnson seeks to add to the scholarly dialogue on immigration law by considering the possible reimagination of the meaning and significance of the...

The statistics are clear: Between 1990 and 2002, there have been more than 3000 dead and missing unauthorized immigrants and 15,000,000 apprehensions and deportations along the Mexican-U.S. border. The border strategy of U.S. authorities has forced undocumented immigrants to pay higher prices to "coyote guides," providing enormous financial incentives for smuggling. The immediate effect has been...