Digital Commons Network^™

Global Product Liability For Dumb ‘Smart’ Home Devices, Michael L. Rustad, Layth Hert

Loyola of Los Angeles Law Review

The number of smart homes globally has increased to 300 million, and the smart home market is expected to reach approximately $181.4 billion by 2025. These new developments, however, are accompanied by related security risks. The attack surface for smart home devices poses latent dangers because of inadequate security that enables cybercriminals to gain access to such devices.

This Article proposes extending product liability to address security vulnerabilities in smart home devices. Part I examines the ubiquity of smart home devices. Part II sets forth the breadth of security vulnerabilities in connected devices, confirming the need to clarify that product …

The Paga Problem: Conflict Between California Employment Policy And Federal Arbitration Act Expansion, Scot Gauffeny

Loyola of Los Angeles Law Review

In June 2022, the U.S. Supreme Court handed down its decision in Viking River Cruises v. Moriana. This controversial opinion sought to resolve ongoing tension between the Federal Arbitration Act (FAA) and California’s Private Attorneys General Act (PAGA) by overturning California precedent dating back to 2014. In keeping with its decades-long crusade to strengthen the FAA, the Supreme Court removed the primary procedural mechanism through which putative PAGA plaintiffs could avoid mandatory arbitration of their claims, instead requiring aggrieved employees to sever their “individual” PAGA claims from the claims of their “similarly aggrieved” coworkers. Those opposed to PAGA viewed …

Implied Malice Aiding And Abetting: A Doctrinal Maze, Jason Mayland

Loyola of Los Angeles Law Review

In the wake of the California Legislature’s elimination of the natural and probable consequences theory of second-degree murder, a new doctrine has emerged for assigning murder liability to accomplices in fatal assaults: implied malice aiding and abetting. This theory, which preserves murder liability for assailants who neither kill nor intend to kill, combines the doctrines of aiding and abetting and implied malice. The difficulty of navigating the resulting thicket of interlocking requirements raises a serious risk that the doctrine will be applied too broadly. After outlining the history of accomplice liability for murder in California and analyzing several cases where …

Bans Beyond Borders: Entrenching Out-Of-State Abortion Bans And California’S Attempt To Shield Its Medical Providers From Liability, Anja Alexander

Loyola of Los Angeles Law Review

Since the Dobbs v. Jackson Women’s Health Organization opinion stripped U.S. citizens of the constitutional right to obtain pre-viability abortions, individual states have been vested with the power to regulate the procedure within their borders. As a result, many states have banned early-term abortions, while some have drafted bans that at-tempt to extend beyond their borders, aiming to impede the ability of their citizens to travel to other states and obtain the procedure where it is legal. These confusing and intentionally vague abortion bans have had a chilling effect on health care throughout the United States as medical professionals fear …

Who’S Afraid Of Diversity, Equity, And Inclusion Statements In Faculty Hiring And Promotion At California Universities?, Matthew W. Babb

Loyola of Los Angeles Law Review

In 1996, California banned affirmative action in both state employment and state education. This ban extends to California’s universities, which are therefore prohibited from using race, sex, color, ethnicity, or national origin in faculty hiring and promotion as well as student admissions. As a result, California’s universities have had to think of alternative ways to improve the diversity of their faculty and students. One solution many California universities have adopted is to ask applicants for faculty positions or promotions to submit a statement describing their approach to diversity, equity, and inclusion. However, the use of diversity, equity, and inclusion statements …

S.B. 98 And The Outer Limits Of Journalism, Daniel Lemer

Loyola of Los Angeles Law Review

Senate Bill 98 (S.B. 98), signed into law on October 9, 2021, aims to safeguard the right of journalists in California to cover public protests without police interference. However, the bill is silent as to who qualifies as a journalist and thus falls under its protections. This Note analyzes different approaches to defining the press in the legal, academic, and journalistic fields. In the context of S.B. 98, it advocates for a broad, process-based definition that encompasses a wide range of newsgatherers, from established professionals writing for major publications, to individuals documenting the events unfolding in their communities with nothing …

Dropping The Veil: How An Investigation Into One Asylum Office Reveals Systemic Failures Within The U.S. Affirmative Asylum System, Anna R. Welch, Sara P. Cressey

Loyola of Los Angeles Law Review

The eleven asylum offices scattered throughout the United States make life-or-death decisions every year in tens of thousands of asylum cases. Yet, little is known about the internal workings of U.S. asylum offices where the informal, non-adjudicative framework for deciding asylum claims takes place behind closed doors. Our three-year study into the Boston Asylum Office is the first ever comprehensive empirical study into the inner workings of an asylum office in the United States. This Article takes a deeper dive into our study’s various findings to highlight systemic failures that are likely pervasive throughout the U.S. affirmative asylum system. We …

The Unknown Consequences Of Place-Based Tax Incentives, Michelle D. Layser

Loyola of Los Angeles Law Review

Nearly thirty years have passed since Prof. Ellen Aprill warned policymakers not to rely on tax incentives to fight urban poverty. At the time, federal and state governments were just beginning to embrace so-called place-based tax incentives, which are used to promote investment in low-income areas. Aprill was skeptical and expressed doubts about their capacity to change business behavior or to benefit low-income residents. Nevertheless, federal and state lawmakers charged forward, introducing new place-based tax incentive programs in the decades that followed. Today, tax incentives are a central part of most place-based policy initiatives. Yet, there is still a lot …

Nonprofit Law As The Tool To Kill What Remains Of Campaign Finance Law: Reluctant Lessons From Ellen Aprill, Richard L. Hasen

Loyola of Los Angeles Law Review

No abstract provided.

Technology Justice: Taxation Of Our Collective And Cumulative Cognitive Inheritance, Hilary G. Escajeda

Loyola of Los Angeles Law Review

As artificial intelligence and robotic technologies accelerate economic transformation, outdated property and tax laws will increasingly fail American workers with ordinary skills that perform routine job functions. Because technology may render millions of workers redundant, U.S. policymakers must make significant social, economic, and legal structural changes to (1) improve the lives of average workers, (2) support the economy, and (3) maintain political stability.

Inspired by Thomas Paine’s Agrarian Justice, this twenty-first century Article argues that “Technology Justice” requires that humans benefit from the cognitive endowment created by our ancestors’ minds. Specifically, it asserts that our collective and cumulative cognitive …

Nonprofits, Taxes, And Speech, Lloyd Hitoshi Mayer

Loyola of Los Angeles Law Review

Federal tax law is of two minds when it comes to speech by nonprofits. The tax benefits provided to nonprofits are justified in significant part because they provide nonprofits great discretion in choosing the specific ends and means to pursue, thereby promoting diversity and pluralism. But current law withholds some of these tax benefits if a nonprofit engages in certain types of political speech. Legislators have also repeatedly, if unsuccessfully, sought to expand these political speech restrictions in various ways. And some commentators have proposed denying tax benefits to groups engaged in other types of disfavored speech, including hate speech …

Every Story Has A Beginning, But What About An End?: Disney’S Expiring Copyrights, Marisol Jimenez Gastelum

Loyola of Los Angeles Law Review

The Walt Disney Company is one of the most powerful and influential media companies in the world that has revolutionized animated films. Steamboat Willie, the cartoon featuring the first version of Mickey Mouse, was released in 1928 and is set to enter the public domain on January 1, 2024. This iconic character has stayed out of the public domain for nearly a century because of Congress’s extension of copyright duration in response to lobbying efforts by Disney and other copyright holders. Although Disney has not made another effort to lobby Congress for an extension to its copyrights, Disney’s development of …

A More Capacious Conception Of Church, Samuel D. Brunson, Philip T. Hackney

Loyola of Los Angeles Law Review

No abstract provided.

Moving Toward Police Accountability: Beyond Senate Bill 2, Ani Boyadjian

Loyola of Los Angeles Law Review

On September 30, 2021, California Governor Gavin Newsom signed into law Senate Bill 2 (SB 2), “creat[ing] a system to investigate and revoke or suspend peace officer certification for serious misconduct,” as well as establishing the Peace Officer Standards Accountability Division and the Peace Standards Accountability Advisory Board, which will be responsible for investigations into police misconduct. This Note will describe the new features of SB 2’s decertification provisions in contrast to traditional methods of addressing police misconduct. Additionally, this Note will examine where the bill fell short, and how to overcome its shortcomings.

Protecting America’S Favorite Pastime: An Analysis Of Match-Fixing Laws In States With Legal Sports Gambling, Alyssa Telles Wyatt

Loyola of Los Angeles Law Review

In 2018, the Supreme Court overturned the longstanding prohibition against sports betting in Murphy v. NAACP. States rushed to capitalize on the new industry, with twenty-eight states currently regulating sports betting. These new laws primarily focus on licensure requirements and generally fail to protect sports’ integrity through match-fixing prohibitions. While a few federal laws regulate sports gambling, only one specifically addresses match-fixing. Against this background, this Note analyzes and compares states’ sports gambling laws against their match-fixing laws, and it proposes new legislation aimed at protecting the integrity of sports games.

Strings Are Attached: Shining A Spotlight On The Hidden Subsidy For Perpetual Donor Limits On Gifts, Roger Colinvaux

Loyola of Los Angeles Law Review

Charitable gifts often come with strings attached. Donors limit their gifts in many ways, typically by restricting an asset’s use or purpose, the timing of spending (as in an endowment), and by securing naming rights. Donors also limit their gifts by giving to a charitable intermediary such as a donor-advised fund or private foundation, thereby retaining effective control over the distribution or investment of the donated asset. Donor limits are perpetual in nature. This Article assesses the law of donor limits. The Article explains that non-tax legal rules strongly favor donor limits; they are easy for donors to impose and …

Stare Decisis And The Status Of California’S Super Pension Contract, T. Leigh Anenson, Jennifer K. Gershberg

Loyola of Los Angeles Law Review

A fundamental principle of law is that courts stand by their decisions. Under the principle of stare decisis, judicial action strives for stability and coherence by setting precedents for the future in deciding current cases. This Article presents an original inquiry into the overruling expression and criteria for stare decisis in the public pension reform context of California’s constitutional contract law. While there is a lively debate among commentators and judges about the role of stare decisis theory and doctrine in federal law, our study extends that conversation to state law for the first time. We develop a new decision-making …

Allocating Deference In Shared Administrative Space, Juan Caballero

Loyola of Los Angeles Law Review

How do courts allocate deference when multiple agencies propose conflicting interpretations? While the Supreme Court has a clearly established Chevron-Mead paradigm for a single agency engaging in statutory interpretation, it has yet to articulate a method for applying deference in “shared administrative spaces,” legal jurisdictions wherein statutes task multiple agencies with implementing their provisions. The Court’s silence in this arena has allowed lower courts and scholars to develop competing and conflicting approaches to applying deference in shared administrative spaces.

This Article challenges the previously proposed rules for shared administrative spaces and proposes a new one. Courts should reframe Chevron “step …

The (Ir)Relevance Of Positivist Arguments For Originalism, Andrew Jordan

Loyola of Los Angeles Law Review

Some constitutional theorists have started looking to jurisprudential accounts of the nature of law for help in resolving disputes in constitutional theory. Most prominent is the “positive turn” defended by William Baude and Stephen Sachs. According to Baude and Sachs, ongoing debates in constitutional theory can be resolved by looking to positive law—that is, to the convergent social practices of legal officials. As a result, they claim that we can avoid the normative debates that have traditionally occupied constitutional theorists. Here, I argue that any attempt to settle substantive debates in constitutional theory via jurisprudential accounts of the nature of …

California’S Failure To Protect Families: Statutory Reform To Better Serve Families Experiencing Domestic Violence, Cecilia Bobbitt

Loyola of Los Angeles Law Review

Los Angeles County is home to the largest child dependency system in the world. A significant portion of the families involved in this system have experienced domestic violence. Because the system is ineffective in responding to domestic violence, families experiencing domestic violence are especially vulnerable to the harms of the family regulation system. The harm that results is the separation of families, leading to irreparable harm and trauma which hurts, rather than helps, families.

This Article’s findings are based on qualitative legal and social science research, including deidentified data from a 2021 UCLA Pritzker Center for Strengthening Families study regarding …

Too Close To Home?: The Constitutionality Of California’S S.B. 9, Stefan Ecklund

Loyola of Los Angeles Law Review

In 2022, Senate Bill 9 went into effect in California. This law allows owners of single-family-zoned parcels to split their lots in two and build at most two units on each parcel, regardless of local land use ordinances, but subject to detailed conditions. This law is one recent attempt to encourage housing development in a state where local opposition to denser housing has been blamed for the state’s current housing affordability problem. This Note will discuss S.B. 9 and the test courts apply to determine when a state law infringes too much on a charter city’s control over “municipal affairs” …

Interpreting “Knowingly” To Establish Criminal Liability In Environmental Law: A Modified Public Welfare Approach, Jesse Harte Edelman

Loyola of Los Angeles Law Review

Now, more than ever, environmental disasters occur on an unprecedented scale. The main objective of environmental law is to protect the environment and human health from harm. In recognition of the role that businesses and corporations play in causing such harm, many environmental laws have been amended to criminalize their harmful conduct.

Focusing on the criminal provisions in the Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act that target offenders who engage in conduct “knowingly,” this Note addresses the split regarding the intent required for a criminal conviction, and the resultant weight accorded these statutes. Courts …

Financial Incentives: The Fault In California’S Privacy Framework, Hannah Donahue

Loyola of Los Angeles Law Review

In 2018, California became the first state in the nation to enact comprehensive consumer data privacy legislation with its California Consumer Privacy Act. The law provides Californians with several rights regarding their consumer data, as well as a right not to be discriminated against for exercising any of those rights. The law, however, includes an exception by which businesses can offer financial incentives (i.e., differing prices, rates, or quality) if those incentives are correlated to the value provided by the consumer’s data. In this way, the law offers consumers tools to control the collection and use of personal data and …

Democracy, Populism, And Concentrated Interests, Shai Dothan

Loyola of Los Angeles Law Review

Concentrated interest groups have a significant advantage over diffuse interest groups: they can effectively stop free riding among their members. Because of this advantage, concentrated interest groups work in unison and manage to capture the government in many democracies. Democratic mechanisms of separation of powers, an independent judiciary, and the rule of law are designed to prevent the capture of government by concentrated interests. Under certain conditions, these mechanisms make it possible for diffuse interests to have a fair share of the influence over the government. Populist ideologists doubt that claim, however. They are convinced that democracies are captured by …

Litigating Slavery’S Reach: A Story Of Race, Rights, And The Law During The California Gold Rush, Jason A. Gillmer

Loyola of Los Angeles Law Review

In May 1852, Charles Perkins decided he wanted his slaves back. Born in Mississippi, Charles emigrated to California in 1849 during the height of the Gold Rush. When he came, like hundreds of others from Southern states, he also brought three enslaved men with him. Following California’s admission to the Union as a free state, however, Charles purportedly freed the men and then returned home, alone. Then, a year later, Charles had a change of heart. Following the enactment of the California Fugitive Slave Act in 1852—which declared that slaves brought to California before it became a state were still …

The Antidemocratic Cost Of California Direct Democracy, Keith Osentoski

Loyola of Los Angeles Law Review

$1.1 billion: the amount of money spent on statewide direct democracy measures in California in just one year. This Note examines this extraordinary spending in light of the historical intent behind California's direct democracy system. Over a century ago, California voters amended the state’s constitution to create the initiative, referendum, and recall powers. The Progressive Era amendment was designed to root out corporate influences on, and corruption in, the state’s governance.

Two recent developments, however, show just how far California’s direct democracy system has strayed from its original intent. In the 2020 general election, special interests poured more than $785 …

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Loyola of Los Angeles Law Review

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …

Market Humiliation, Hila Keren

Loyola of Los Angeles Law Review

For many people, the marketplace is too often a site of intense humiliation. This Article aims to assist legal practitioners, judges, lawmakers, and scholars in understanding what market humiliation is, how it operates, and what can be done to curtail it. This is a particularly timely—even urgent—task due to a pair of 2022 developments at the Supreme Court that carry an enhanced threat to dignified market participation. In one, Cummings v. Premier Rehab Keller, the Court denied damages for emotional harm from a deaf and legally blind woman who was refused suitable accommodation by a private medical provider. The …

Professor Pillsbury And The Boundaries Of Deserved Punishment, Kevin Lapp

Loyola of Los Angeles Law Review

No abstract provided.

"Judicial Frustration": A Local Judge's Bold Attempt To Solve The Homelessness Crisis From The Bench, Gregory A. Alonge

Loyola of Los Angeles Law Review

In May 2021, in the case of LA Alliance v. Los Angeles, Judge David O. Carter of the Central District of California granted a sweeping order enjoining the city and county of Los Angeles to offer shelter to all unhoused persons living in Skid Row. The 109-page order identified structural racism and government indifference as the unconstitutional causes of homelessness in the region, and condemned California’s housing-first approach to addressing the issue. Although the Ninth Circuit swiftly vacated the preliminary injunction on procedural grounds, Judge Carter’s order begs the question: would universal shelter offers actually ameliorate the homelessness crisis? …