The first three of these categories sound in tort – they protect a person’s right to privacy; but the fourth category doesn’t fit well with the first three – and appears based more on a personal right – an asset if you will – which sounds more like a property right than a personal one. Reflective of this difference is the fact that rights of privacy have generally not found their way into statutory construction, and are instead articulated and refined in case law – whereas rights of publicity are based equally in statutory law as well as case law.

Three elements are commonly accepted as comprising the Right of Publicity: the use of a well known person’s “name, image and likeness.” While slight differences in this configuration are found in different state statutes, the concept embodied in these elements are found in all of the statutes. What is often missing is a broader view of the right – a view which incorporates not just name, image and likeness, but also any and all personality and appearance characteristics, such as distinctive clothing and voice. These added items, referred to as the “elements of identifiability”, are generally deemed to be “common law” right of publicity elements. The protection of these elements is what critics generally decry as an unwarranted expansion of the right of publicity. California is one state that embraces, through the doctrine of common law right of publicity, this expansive view. Ninth Circuit Chief Judge Alex Kozinski has been sharply critical of this trend, writing spirited dissents in the Vanna White v. Samsung, and Wendt v. Host International cases.

Part I of this Comment provides the reader with a brief explanation of how construction contracts are formed and describes the nature of liability associated with delay in the construction industry. Part II includes a brief overview of the general enforceability of NDFD clauses and chronicles the numerous exceptions to their enforcement that have evolved through common law and state statutes. Part III presents policy arguments against the enforcement of NDFD clauses and rebuts some common arguments posed in favor of their enforcement. Part IV discusses the current treatment of NDFD clauses in California and challenges the effectiveness of existing legislation in the wake of Harper/Neilson-Dillingham. Part V presents suggested language for the revision of section 7102, modeled on the current Ohio Revised Code Annotated, and explains the practical effect of the proposed revisions. Finally, this Comment concludes by urging the California legislature to revise California Public Contract Code section 7102 to render NDFD clauses unenforceable in all public and private contracts where the owners cause delay.

Cite as 42 Golden Gate Univ. L. Rev. 283 (2012).

Cite as 42 Golden Gate Univ. L. Rev. 243 (2012).

The principles handed down from a pair of cases in the 1930s involving the constitutionality of municipal bankruptcy would likely support upholding a state-bankruptcy chapter that is carefully drawn to respect state sovereignty. Though highly relevant, these cases are not dispositive, however, because the legal landscape has changed a great deal since the 1930s. Even a broad state-bankruptcy chapter would be constitutional, because recent Tenth Amendment jurisprudence does not preserve traditional state functions. The Court has already upheld many similar infringements on state sovereignty, such as the interference with state contractual obligations.

Assuming a state-bankruptcy chapter is constitutional, is it a good idea? The main justification expressed for the creation of a state bankruptcy chapter is that it is necessary to avoid a massive federal bailout, because states are too big to fail. This justification concludes that the grim logic of bailouts applies to the states because they are significantly interconnected with the financial markets.

Cite as 42 Golden Gate Univ. L. Rev. 217 (2012).

This Article examines the rise of Episcopal Church property litigation generated by theological conflicts between the church’s liberal and conservative wings. These disputes are taking place as the result of historical changes. These include a changing social gospel stemming from newer theological developments, one that has parallels in perspectives on constitutional adjudication—process theory, critical theory and a “living constitution.” The Supreme Court’s modification of the constitutional standards courts might use in hearing the disputes then influenced adjustments to the PECUSA’s strategies for claiming ownership over local church property. This Article offers some unique perspectives on matters not previously addressed in the scholarly literature: the significance of property theory grounding the disputes in competing notions of property and identity. It exposes the limitations of using civil courts to resolve what should instead be resolved “in-house.” Finally, this Article explains how the Episcopal Church canons might be reformed to create an ecclesiastical property court for resolving these disputes, and offers a model for explaining how such a court might work.

Cite as 42 Golden Gate Univ. L. Rev. 151 (2012).