Law Commons^™

Science, Creativity, And The Copyright Clause, Ned Snow

UC Law Journal

The Constitution provides Congress the power to enact copyright laws in order “To promote the Progress of Science.” Some statements by the modern Supreme Court may be interpreted to suggest that “the Progress of Science” is synonymous with creativity, and most scholars articulate the purpose of copyright law in terms of encouraging creative expressions. This is troubling, however, because not all creative expressions yield public knowledge; indeed, some yield public harm. For example, false statements of fact that are made to purposefully deceive are highly creative, but those statements inhibit the spread of knowledge and may lead to demonstrably harmful …

Caremark’S Climate Failure, Andrew W. Winden

UC Law Journal

Unless U.S. corporations take steps to harden their assets against natural disasters exacerbated by climate change and prepare for the transition to a zero-carbon economy, they face the prospect of catastrophic risk to their assets and market values, damaging both shareholders and, particularly where there are systemic effects, society at large. But surveys indicate that directors of American corporations do not view climate change as an important focus for their boards. In contrast, directors in Australia and Canada consider climate change one of the top two priorities for their governments and one of the top challenges for their companies. Different …

Impact Jurisdiction & Structural Investigations: The Key To The United States Prosecuting Human Rights Violators, Nick Wiley

UC Law Journal

Since the turn of the century, there has been an exponential rise in forcibly displaced persons and human rights violations. This rise has coincided with a series of acts that have removed the United States as a global leader in the fight for human rights. When President Biden took office, he stated his goal of returning the United States to being the global moral authority leader. To achieve this goal, the Biden Administration implemented a plan to address the human rights violations in Central America that are driving forcibly displaced persons to the U.S.-Mexico border seeking asylum. The plan, however, …

Race, Religion, And National Identity Review Of Sahar Aziz, The Racial Muslim: When Racism Quashes Religious Freedom (Uc Press, 2022), Natsu Taylor Saito

UC Law Constitutional Quarterly

No abstract provided.

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Foreword, Madeline Cline

UC Law Constitutional Quarterly

No abstract provided.

Understanding An American Paradox: An Overview Of The Racial Muslim: When Racism Quashes Religious Freedom, Spearit

UC Law Constitutional Quarterly

No abstract provided.

Racial Equality, Religious Liberty, And The Complications Of Pluralism, Rachel F. Moran

UC Law Constitutional Quarterly

No abstract provided.

Immigration Law’S Boundary Problem: Determining The Scope Of Executive Discretion, Peter Margulies

UC Law Journal

In immigration law, executive discretion has become contested terrain. Courts, officials, and scholars have rarely distinguished between regulatory discretion, which facilitates exclusion and removal of noncitizens, and protective discretion, which safeguards noncitizens’ reliance interests. Moreover, courts have long discerned an internal-external divide in discretion, deferring to executive measures that exclude noncitizens abroad, while reducing deference for measures concerning noncitizens who have already entered the United States. Immigration law needs a cohesive framework for executive discretion. This Article suggests a stewardship model to fill that gap.

Recent developments have emphasized the need for a coherent model of discretion. The Trump Administration …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Financial Data Governance, Douglas W. Arner, Giuliano G. Castellano, Eriks K. Selga

UC Law Journal

Finance is one of the most digitalized, globalized, and regulated sectors of the global economy. Traditionally technology intensive, the financial industry has been at the forefront of digital transformation, starting with the dematerialization of financial assets in the 1960s and culminating in the post–2008 global financial crisis era with the fintech movement. Now, finance is data: financial transactions are transfers of data; financial infrastructures, such as stock exchanges and payment systems, are data networks; financial institutions are data processors, gathering, analyzing, and trading the data generated by their customers. Financial regulation has adapted to this fast-paced evolution both by implementing …

Financial Inclusion Gone Wrong: Securities And Cryptoassets Trading For Children, Nizan Geslevich Packin

UC Law Journal

According to studies, money is a major source of anxiety for most Americans. In looking for ways to remedy the source of such anxiety, some believe that increasing children’s financial orientation could help lower their money-related anxiety levels as adults. Identifying this market as a business opportunity—and reassured by research that shows that by age six, children are already veteran consumers of mobile apps—financial technology (fintech), decentralized finance (DeFi), and even traditional financial entities have started offering services and products to children. These services and products include a broad array of financial-related products and services, from enabling children to earn …

How Crisis Affects Crypto: Coronavirus As A Test Case, Hadar Y. Jabotinsky, Roee Sarel

UC Law Journal

Everybody is talking about cryptocurrencies. These digital tokens, which started in a one-asset market, have swiftly ballooned into a massive and diverse “cryptomarket.” The cryptomarket is still mostly unregulated, but this is about to change. With President Biden’s adoption of the Executive Order on Ensuring Responsible Development of Digital Assets, regulatory initiatives are being adopted abroad, and global regulation looms ahead. In light of the expected regulatory changes, two important questions emerge: is there a clear rationale for legal intervention in the cryptomarket? And if so, what type of regulation is optimal?

This Article is the first to consider how …

Deferring Intellectual Property Rights In Pandemic Times, Peter K. Yu

UC Law Journal

This Article examines an unprecedented proposal that India and South Africa submitted to the World Trade Organization (WTO) in October 2020, which called for a waiver of more than thirty provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights to help combat COVID-19. It begins by recounting the proposal’s strengths and weaknesses. The Article then identifies the challenges surrounding the negotiation and implementation of the proposed waiver. It shows why these two sets of challenges were neither separate nor sequential, but deeply entangled at the time of the international negotiations. To respond to these challenges and the negotiation …

Mitigating Catastrophe Risk For Landowners, Stewart E. Sterk

UC Law Journal

Local, national, and global catastrophes entail significant risk for landowners. The governmentsponsored National Flood Insurance Program illustrates how subsidizing insurance against catastrophe risk can result in overinvestment in risk-prone properties. Government intervention, however, has largely been a response to the historical failure of the private insurance industry to provide adequate protection against correlated risks, a failure with the potential to generate underinvestment in land and devastate existing owners.

When data is available about the incidence and severity of potential disasters, improvements in technology have made it more feasible for insurers to calibrate premiums and discounts with greater accuracy, and sophisticated …

When Further Incarceration Is No Longer In The Interest Of Justice: Instituting A Federal Prosecutor-Initiated Resentencing Framework, Lydia Tonozzi

UC Law Journal

The dire state of the prison population in the United States has become common knowledge both at home and abroad. Mass incarceration in the United States has been caused by nearly four decades of retributive criminal justice policies that do little to reduce crime. This mass incarceration imposes a multitude of costs on American society, both financially and socially. Furthermore, congressional goals to reduce crime rates are necessarily undermined by punitive policies at the federal level. The history of California’s penal system during the same time frame parallels the federal history. Yet in 2017, California began to remedy this history …

Foreword, Madeline Cline

UC Law Constitutional Quarterly

No abstract provided.

The Long Road To Dobbs, Earl M. Maltz

UC Law Constitutional Quarterly

For anti-abortion activists, the recent decision in Dobbs v. Jackson Women’s Health Organization represented the culmination of a decadeslong campaign to reverse the holding of Roe v. Wade and eliminate constitutional constraints on governmental authority to limit access to abortions. In 1992, despite the fact that the Court was dominated at that time by justices who had been chosen by Presidents who were openly critical of the prochoice position, these activists had been sorely disappointed by the outcome in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which a majority of the justices had reaffirmed their support for what was …

The Constitution’S Waning Enforceability: Constitutional Torts After Egbert & Vega, Bailey D. Barnes

UC Law Constitutional Quarterly

The 2021 term of the Supreme Court of the United States produced two opinions significantly dampening the future of constitutional tort actions, which are cases brought to remedy a government agent’s deprivation of an individual’s constitutional rights. First, in Egbert v. Boule, the Court refused to extend Bivens liability to an excessive force claim made against a United States Border Patrol Agent. Second, in Vega v. Tekoh, the Court contravened the traditional understanding of the Fifth Amendment’s Self-Incrimination Clause by preventing a § 1983 civil rights action against a sheriff’s deputy who procured an un-Mirandized statement from a criminal suspect. …

Denaturalization And The Negative Effects Of Widespread Insecurity In Citizenship For Naturalized Citizens, Saman Hashemi

UC Law Constitutional Quarterly

No abstract provided.

Masthead

UC Law Journal

No abstract provided.

Deepfakes On Trial: A Call To Expand The Trial Judge’S Gatekeeping Role To Protect Legal Proceedings From Technological Fakery, Rebecca A. Delfino

UC Law Journal

Deepfakes—audiovisual recordings created using artificial intelligence (AI) technology to believably map one person’s movements and words onto another—are ubiquitous. They have permeated societal and civic spaces from entertainment, news, and social media to politics. And now deepfakes are invading the courts, threatening our justice system’s truth-seeking function. Ways deepfakes could infect a court proceeding run the gamut and include parties fabricating evidence to win a civil action, government actors wrongfully securing criminal convictions, and lawyers purposely exploiting a lay jury’s suspicions about evidence. As deepfake technology improves and it becomes harder to tell what is real, juries may start questioning …

Considering Vaccination Status, Govind Persad

UC Law Journal

This Article examines whether policies—sometimes termed “vaccine mandates” or “vaccine requirements”— that consider vaccination status as a condition of employment, receipt of goods and services, or educational or other activity for participation are legally permitted, and whether such policies may even sometimes be legally required. It does so with particular reference to COVID-19 vaccines.

Part I explains the legality of private actors, such as employers or private universities, considering vaccination status, and concludes that such consideration is almost always legally permissible unless foreclosed by specific state legislation. Part II examines the consideration of vaccination status by state or federal policy. …

The Latest Interface: Using Data Privacy As A Sword And Shield In Antitrust Litigation, Sammi Chen

UC Law Journal

The new and growing intersection between data privacy and antitrust uses data privacy as both a sword and shield against antitrust liability. On one hand, large technology firms have begun using privacy as a business justification for alleged antitrust misconduct. On the other hand, private and government plaintiffs have raised privacy concerns in antitrust litigation. Although antitrust law and data privacy law are two distinct bodies of legal doctrines, there is literature suggesting their consolidation in certain contexts. The Hipster Antitrust movement and integrationist theory purport that data privacy should be included in an antitrust review when privacy is a …

Mistreatment And Exploitation Of Skilled Foreign Workers Through H- Visa Precarity, Isha Vazirani

UC Law Journal

The Department of Homeland Security (DHS) announced that beginning on May 26, 2015, certain H-4 dependents of H-1B nonimmigrants would be eligible to apply for an Employment Authorization Document (EAD). The H-4 EAD program was the target of several threats and changes under the Trump Administration, which made it increasingly difficult for H-4 EAD holders to maintain uninterrupted employment authorization. These difficulties prompted several lawsuits against the U.S. Citizenship and Immigration Services (USCIS), under DHS. USCIS favorably settled one such class-action lawsuit. Still, the H-4 EAD program remains only precariously in place because it was never officially codified and exists …

Masthead

UC Law Journal

No abstract provided.

Privacy Theater In The Bankruptcy Courts, Christopher G. Bradley

UC Law Journal

The intersection between privacy law and the big business of consumer data has become a major focus of policymakers, scholars, the business community, and consumer advocates, yet the legal regime governing the commercial use of data remains contested and often unclear. The difficulty becomes particularly acute when a company is financially distressed. A healthy firm might hesitate to exploit private data out of concern that doing so would cause reputational harm or liability, but these scruples matter less to financially distressed firms.

Bankruptcy law provides for the appointment of a “consumer privacy ombudsman” to make a recommendation on whether debtors …

Loyalties V. Royalties, Sarah Polcz

UC Law Journal

Friendship rewards us with a bond of loyalty and equality. The marketplace rewards us based on what we have to offer. When friends work together to create something, and when the market judges their creation to have value, this sets up a clash between realms. Should the pie of profits be sliced according to the values of friendship or the values of the marketplace? The answer matters for policymakers concerned with creative incentives. How satisfied people are with their monetary rewards can turn more on how much others are getting—their relative rewards—than on the absolute amount received. Nevertheless, it is …

The Surprisingly Strong Case For Local Income Taxes In The Era Of Increased Remote Work, Erin Adele Scharff, Darien Shanske

UC Law Journal

Traditional theoretical literature on fiscal federalism urges cities to finance themselves with taxes on immobile sources. Thus, the literature sees real property taxes as the best source of local revenue; real property, after all, cannot be easily moved. This same literature eschews local income taxes because it is easy for a taxpayer to move, thus allowing exit from local income tax obligations.

Practice here seems to follow theory: cities do not tend to levy income taxes. However, this general trend has caused scholars to overlook important exceptions. In fact, many cities impose income taxes and have for a long time. …

Pole Cameras: Applying Fourth Amendment Protections To Emerging Surveillance Technology, Rahil Maharaj

UC Law Journal

Evolving surveillance technologies present unique challenges for the judiciary to maintain robust Fourth Amendment privacy protections. New surveillance tools such as pole cameras raise significant questions regarding the current scope of the Fourth Amendment and the steps the Supreme Court must take to prevent the erosion of a foundational constitutional right.

This Note lays out the current debate among scholars and courts regarding the impact of the Supreme Court’s decision in Carpenter v. United States. It demonstrates the challenge that new technology presents by providing an overview of the split between state and federal circuit courts in applying Carpenter to …