Digital Commons Network^™

Corporations And The Original Meaning Of “Citizens” In Article Iii, Mark Moller, Lawrence B. Solum

UC Law Journal

Article III confers the judicial power of the United States over controversies between “citizens” of different states. In Section 1332(c) of Title 28 of the United States Code, Congress has provided that for the purposes of diversity jurisdiction, corporations are citizens of the state in which they are incorporated and the state in which their principal place of business is located. This raises the question whether corporations are citizens within the original public meaning of Article III of the Constitution. This Article demonstrates that in 1787 the word “citizen” referred only to natural persons and therefore that corporations cannot be …

Masthead

UC Law Journal

No abstract provided.

Beyond Implicit Bias: Litigating Race And Gender Employment Discrimination Using Data From The Workplace Experiences Survey, Joan C. Williams, Rachel M. Korn, Sky Mihaylo

UC Law Journal

This Article joins other voices in challenging what I will call the “implicit bias consensus” in employment discrimination law, first crystallized in the work of Susan Sturm and Linda Hamilton Krieger. The implicit bias consensus has two basic components. The first is that most employment discrimination today is what Sturm christened “second generation employment discrimination” caused by implicit bias that is uncontrollable and unconscious, subtle and ambiguous. The second component of the consensus is that Title VII is ill-suited to address second generation discrimination.

This Article challenges the implicit bias consensus based on six different datasets from the Workplace Experiences …

The Unitary Executive Theory In Comparative Context, David M. Driesen

UC Law Journal

The debate over the unitary executive theory—the theory that the President should have sole control over the executive branch of government—has proven extremely parochial. Supporters of the theory argue that the original intent of our country’s founders requires presidential control, including a power to remove federal officials from their posts for political reasons. Opponents of the theory rely on functional considerations and our practice of dispersing power more widely. But neither side examines developments abroad to see what light other countries’ experience might shed on the question of whether the Supreme Court should craft a new rule of constitutional law …

Corporate Technologies And The Tech Nirvana Fallacy, Luca Enriques, Dirk A. Zetzsche

UC Law Journal

This Article introduces the term Corporate Technologies (“CorpTech”) to refer to the use of distributed ledgers, smart contracts, Big Data analytics, artificial intelligence and machine learning in the corporate context and analyzes the impact of CorpTech on the future of corporate boards. We focus on the tech manifestation of agency problems within corporations and identify—after considering possible market, governance, and regulatory solutions—elements of a governance framework for the CorpTech age. In particular, we take on a prediction often found in the literature, namely that CorpTech has the potential to solve a number of corporate governance problems for good and even …

Facilitating Money Judgment Enforcement Between Canada And The United States, James P. George

UC Law Journal

The United States has attempted for years to create a more efficient enforcement regime for foreign-country judgments, both by treaty and statute. Long negotiations succeeded in July 2019, when the Hague Conference on Private International Law (with U.S. participants, including the Uniform Law Commission) promulgated the new Hague Judgments Convention which harmonizes judgment recognition standards but leaves the domestication process to the enforcing jurisdiction. In August 2019, the Uniform Law Commission took a significant step to fill that gap, though limited to Canadian judgments. The Uniform Registration of Canadian Money Judgments Act provides a registration process similar to that for …

From Horseback To The Moon And Back: Comparative Limits On Police Searches Of Smartphones Upon Arrest, Bryce Clayton Newell, Bert-Jaap Koops

UC Law Journal

The search of a smartphone by the police in connection with an arrest carries the potential to intrude into the very core of an arrestee’s private life. Indeed, such a search has been compared to providing a “window[] to our inner private lives,” including aspects of our lives completely disconnected from the reasons for the arrest. In recent years, the supreme courts of the United States, Canada, and the Netherlands (as well as Dutch legislators) have handed down rules about how, and whether, police may search an arrestee’s smartphone upon arrest without first obtaining a warrant or other court order. …

Unearthing The Origins Of Quasi-Property Status, Alix Rogers

UC Law Journal

Under contemporary American law, human corpses and some bodily parts are classified as quasi-property. Quasi-property is an American legal conception composed of limited interests that mimic some of the functions of property, but does not formally qualify as property. It is a uniquely American, idiosyncratic and misunderstood legal category. Quasi-property status is most typically associated with intellectual property given the Supreme Court decision of International News Services v. Associated Press. That human remains and bodily materials are classified as quasi-property is less well known. The confusion surrounding the quasi-property status of the dead has negative implications for current and future …

How Much Procedure Is Needed For Agencies To Change “Novel” Regulatory Policies?, Ming Hsu Chen

UC Law Journal

The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make policy, it need not provide notice to the public or allow comment on the new rule; this makes changes easier, faster, and less subject to judicial review. Under the Obama Administration, guidance documents were used to implement policy shifts in many areas of administrative law, including civil rights issues such as transgender inclusion and campus sexual harassment, and immigration law issues such as deferred …

Statutory Purpose In The Rollback Wars, Alice Kaswan

UC Law Journal

The Trump Administration has been rolling back environmental and other regulations at a rapid rate. Each time, they are called upon to interpret their authorizing statutes. As they reverse previous administrations’ regulations, how do their new interpretations address the statutes’ fundamental objectives? In this Essay, I assess one part of the National Highway Traffic Safety Administration (NHTSA)’s and Environmental Protection Agency (EPA)’s rollback of clean car standards: a regulation stating that the Energy Policy and Conservation Act (EPCA) preempts California’s trailblazing controls on vehicles’ greenhouse gas emissions. I argue that the agency preemption analysis gave insufficient attention to Congress’s explicit …

Sticky Regulations And Net Neutrality Restoring Internet Freedom, Aaron L. Nielson

UC Law Journal

Stable law is valuable, yet also remarkably lacking in our nation’s internet policy. Over the last two decades, the Federal Communications Commission (FCC) has charted a zigzagging course between heavier and lighter regulation. Last year, the U.S. Court of Appeals for the District of Columbia Circuit largely upheld the agency’s latest shift—this time toward deregulation. But in 2016, that same court upheld the agency’s shift in the opposite direction. And to top it all off, some predict that after political control of the White House shifts, the FCC may again reverse course and reinstate a policy similar to what the …

Power Lines: Climate Change And The Politics Of Undergrounding, Deborah Brundy

UC Law Journal

After years of enduring devastating loss of property and life, toxic air quality and intermittent power shutoffs, the public is primed for dramatic change to ensure a safe and resilient power grid. To achieve this, Californians are demanding that utilities bury the wires. As the court in Town of Tiburon v. Bonander emphasized over a decade ago, “it requires no independent research to support the self-evident conclusion that placing overhead utility wires underground will reduce the risk of weather-related power outages as well as the safety risk posed by downed utility poles and lines.”1 Wholesale undergrounding is not the cure-all …

Uncooperative Environmental Federalism 2.0, Jonathan H. Adler

UC Law Journal

As a presidential candidate, Donald Trump promised to curtail federal environmental regulation and empower the states. Has the Trump Administration made good on these pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This Essay provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.

Exceptional Circumstances: Immigration, Imports, The Coronavirus, And Climate Change As Emergencies, Daniel A. Farber

UC Law Journal

President Trump has used emergency powers to achieve key parts of his policy agenda, exemplified by his travel ban, funding for the border wall, and tariffs on many imports. He has also declared the 2020 coronavirus pandemic a national emergency, but has taken relatively little action under this declaration to date. This Essay examines how the Administration has invoked emergency powers in these and other settings, along with the responses of the courts. This Essay also considers how these actions could be used as precedents by future Presidents, such as declaring a climate change emergency. Finally, this Essay discusses the …

Operationalizing Internal Administrative Law, Christopher J. Walker, Rebecca Turnbull

UC Law Journal

As part of the Hastings Law Journal’s Administrative Law in the Age of Trump Symposium, this Essay argues that administrative law should stop fixating on federal courts. While court-centric external administrative law serves an important role in administrative practice, it is far from sufficient to safeguard against agency overreach. After all, the vast majority of agency actions never make it to court. Instead, this Essay builds on recent suggestions that federal agencies can leverage internal administrative law to self-discipline against abuses of power. By surveying internal administrative law in various regulatory contexts and drawing substantially from the important work of …

A Public Health Law Path For Second Amendment Jurisprudence, Michael R. Ulrich

UC Law Journal

The two landmark gun rights cases, District of Columbia v. Heller and McDonald v. City of Chicago, came down in 2008 and 2010, respectively. In the decade that has followed, two things have become abundantly clear. First, these cases provide little clarity about the nature and scope of Second Amendment rights, resulting in chaos and circuit splits in the lower courts. Second, growing empirical evidence has revealed that, in the background of the debate on individual constitutional rights, a serious gun violence epidemic is intensifying around the country. In one corner, gun rights advocates worry that increased firearm regulation will …

Supreme Court Politics And Life Tenure: A Comparative Inquiry, Kevin Costello

UC Law Journal

While the process of nominating and confirming justices to the U.S. Supreme Court has always been political in nature, the three most recent nominations of Merrick Garland, Neil Gorsuch, and Brett Kavanaugh illustrate the extent to which the confirmation process has become especially partisan. Whereas the nominations of Antonin Scalia and Ruth Bader Ginsburg each received broad, bipartisan support, no nominee since Stephen Breyer has received more than eighty votes in the Senate. Furthermore, for the first time since 2004, the economy is not the political issue that voters are most likely to consider “very important;” that designation now belongs …

Putting Names To Money: Closing Disclosure Loopholes, Gian Gualco-Nelson

UC Law Journal

Elections create an opportunity for voters to get to know the candidates, but elections also give voters the opportunity to get to know their fellow voters. Campaigns are obligated to disclose the identity of their donors, which can make these donors’ political affiliations known to the world. Also, the identity of a donor can adversely affect the recipient’s public image and potentially, the election. These disclosure requirements arguably enable stigmatizing candidates and fellow voters for their political ideology, but this is offset by the desire to make elections transparent.

In today’s polarized society, the risk of stigma seems greater than …

Fracking As A Test Of The Demsetz Property Rights Thesis, David A. Dana, Hannah J. Wiseman

UC Law Journal

Since its introduction in 1967, the account of property rights formation by Harold Demsetz has pervaded the legal and economic literature. Demsetz theorized that as a once-abundant, commonly shared resource becomes more valuable and sought-after, users will move to more clearly define property rights in the resource. Despite the high transaction costs of this approach, the costs of organizing and enforcing a rights regime become worthwhile in the face of scarcity. And privatization, in turn, leads to more efficient use of the resource by the individuals holding the property rights, with less externalization of the harmful effects of resource use. …

Pharmaceutical “Pay-For-Delay” Reexamined: A Dwindling Practice Or A Persistent Problem?, Laura Karas, Gerard F. Anderson, Robin Feldman

UC Law Journal

The Supreme Court ruled in FTC v. Actavis that a delay in generic entry may be anticompetitive when part of a patent settlement includes a large and otherwise unjustified value transfer to the generic company, termed a reverse payment patent settlement, or “pay-for-delay.” Following Actavis, drug companies have limited the size of reverse payments and have fashioned settlement terms that include more discreet categories of compensation to generic companies. In light of the fact that such settlements retain the potential for anticompetitive effects, the apparent size of the reverse payment may no longer be a useful gauge of the legality …

The Making Of The Clean Air Act, Brigham Daniels, Andrew P. Follett, Joshua Davis

UC Law Journal

The 1970 Clean Air Act is arguably Congress’ most important environmental enactment. Since it became law fifty years ago, much could be and has been said about how it has changed both the physical environment and the contours of environmental law. Much less, however, has been written on the genesis of the Act itself. Where its history is discussed, it is often segmented or heavily summarized.

In this Article, we take on the story of how the Act came to be as well as how early enforcement practices cemented its importance in the legal landscape. To do so, we rely …

Justice Roger J. Traynor, Pragmatism, And The Current California Supreme Court, Stephen D. Sugarman

UC Law Journal

California Supreme Court Justice Roger J Traynor entered the debated between pragmatists and formalists, siding with the former in both his scholarly writings and in his judicial opinions, especially in torts. In this Article, I explore what I have identified as the leading torts decisions of the California Supreme Court involving personal injury or death in the past twenty years. I first provide background on the rise of strict product liability and an explanation of what I see as the current California Supreme Court’s misguided reliance on the Rowland factors, which promote the treatment of “no breach” cases as “no …

Generic But Expensive: Why Prices Can Remain High For Off-Patent Drugs, Frazer A. Tessema, Aaron S. Kesselheim, Michael S. Sinha

UC Law Journal

Brand-name prescription drugs are sold at extremely high prices in the US because patents and other market exclusivities provided by the government allow manufacturers to exclude direct competition. This period of market exclusivity was intended for pharmaceutical manufacturers to recoup costs associated with research and development of those products and make profits. The other intended outcome of this system is that the market exclusivity period for brand-name drugs should be self-limited, with competition being able to flourish after the market exclusivities end. Such competition has been most effectively supplied by generic drug manufacturers that produce Food and Drug Administration (FDA)-approved …

Roger Traynor, The Legal Process School, And Enterprise Liability, Edmund Ursin

UC Law Journal

Roger Traynor, who served on the California Supreme Court from 1940 to 1970, the last five years as Chief Justice, was one of America’s great judges. This Article compares Traynor’s view of the lawmaking role of courts with the dominant jurisprudential perspective of mainstream legal scholars at time, that of the legal process school.

Today it is widely believed that Traynor was a “firm advocate of the legal process” approach to judicial lawmaking. The thesis of this Article, however, is that Traynor was a legal realist whose jurisprudence of what Judge Richard Posner has termed legal pragmatism was at odds …

Masthead

UC Law Journal

No abstract provided.

Dying For Equal Protection, Teri Dobbins Baxter

UC Law Journal

When health policy experts noticed that health outcomes for African Americans were consistently worse than those of their White counterparts, many in the health care community assumed that the poor outcomes could be blamed on poverty and lifestyle choices. Subsequent research told a different story. Studies repeatedly showed that neither money, nor marriage, nor educational achievement protect African American men, women, or children from poor health. Instead, the disparities were more likely explained by racism. Specifically, multiple studies have shown that experiencing racism has been linked to increased infant and maternal mortality rates, elevated stress levels, and an increased risk …

Managerial Fixation And The Limitations Of Shareholder Oversight, Emily Winston

UC Law Journal

BlackRock’s recent public letters to the CEOs of the companies in which it invests have drawn substantial attention from stock market actors and observers for their conspicuous call on corporate CEOs to focus on sustainability and social impacts on non-shareholder stakeholders. This Article explores the market changes that propelled BlackRock into a position to make such a call, and whether institutional shareholders can be effective monitors of these broad social goals. It argues that while corporate attention to non-shareholder stakeholders can improve firm value, shareholder oversight of these stakeholder relationships will not succeed in having this effect.

In the past …

From A Panacea To A Panopticon: The Use And Misuse Of Technology In The Regulation Of Judges, Amnon Reichman, Yair Sagy, Shlomi Balaban

UC Law Journal

This Article reveals the untold story of Legal-Net, Israel’s cloud-based judicial management system. While scholarly attention has thus far focused on the narrow question of the impact technology may have on judicial decision-making or on efficiency, little has been written on the manner in which technology affects the regulation and management of judges and the administration of justice as a whole. Through a combined historical analysis and interview methodology, we trace the development of Legal-Net from the early 1990s and situate it within a theoretical law-and-technology context. Detailing Legal-Net’s trajectory provides meaningful insights as to the relationship between regulation, technology, …

Psychological Distress, Mental Disorder, And Assessment Of Decisionmaking Capacity Under U.S. Medical Aid In Dying Statutes, Lois A. Weithorn

UC Law Journal

This Article examines concepts of treatment decisionmaking capacity relevant to medical aid in dying as it is currently authorized in the United States. In order to be eligible for medical aid in dying in one of the ten jurisdictions now allowing such assistance, patients must be capable of making an informed health care decision. Under many of the governing statutes, special attention is given to whether a patient is “suffering from,” for example, “a psychiatric or psychological disorder or depression” that is causing impaired judgment.

This Article analyzes the pertinent statutory provisions, examining the meaning of terms such as “capacity” …

Reconceiving Legal Siblinghood, Ruth Zafran

UC Law Journal

How should the state treat siblings’ legal relationships in cases where the relationship is based solely on genetics, such as between siblings who were born of the same sperm donor, but did not grow up together? How should it treat siblings who were born to the same family but share no genetic connection at all? These are just two formulations of the type of legal dilemmas arising ever more frequently concerning the legal recognition of siblings who are born to families created by gamete donation. In exploring “legal siblinghood” in donor-conceived families, this Article offers a contribution to the literature …