Law Commons^™

Masthead

UC Law Journal

No abstract provided.

Dirty Secret: The Laundering Of Foreign Arbitral Awards, Charles H. Brower Ii

UC Law Journal

This Article addresses an undertheorized but important topic: the laundering of foreign arbitral awards. Prevailing parties in foreign arbitrations often obtain judgments confirming their awards at the place of arbitration. Fifty years ago, the Second Circuit established the so-called “parallel entitlements” doctrine, pursuant to which prevailing parties can seek enforcement of the foreign award under federal law, or enforcement of the foreign confirmation judgment under state law, or both.

If an award faces obstacles to enforcement under the New York Convention or the Federal Arbitration Act, the prevailing party can still obtain enforcement of the confirmation judgment under the legal …

Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski

UC Law Journal

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies. Putting the intricacies of copyright licensing aside, what motivates artists to object to the use of their songs …

The Case For Downsizing The Corporate Attorney-Client Privilege, Elise Bernlohr Maizel

UC Law Journal

Privilege is a choice. In crafting evidentiary privileges, courts and policymakers have fashioned a rule that concedes that some things are more important than getting to the truth. Indeed, our entire law of privilege stems from the fact that society deems certain relationships important enough to protect their communications even from the truth-seeking process of litigation. The attorney-client relationship is a paradigmatic example. But something has gone seriously wrong with the law’s attempts to transplant protections for an intimate, confessional space for communications between an individual and their attorney onto “artificial creatures of the law”: the modern corporation.

Today’s corporate …

Born To Equality: Minor Children, Equal Protection, And State Laws Targeting Lgbtq+ Youth, Nicholas Serafin

UC Law Journal

States throughout the country are targeting LGBTQ+ youth, singling out transgender youth in particular. Part I of this Article provides an overview of laws targeting LGBTQ+ youth, and argues that many of these laws express animus towards and impose a stigma upon LGBTQ+ minor children. Though they are distinct doctrines, the Court has interwoven animus and stigma- based arguments throughout its gay rights jurisprudence to protect LGBTQ+ individuals from state action that imposes dignitary harm. Laws targeting LGBTQ+ youth often evince the same irrational hostility and stigmatizing purpose that the Court rejected decades ago.

Historically the Court’s LGBTQ+ jurisprudence has …

Trickle-Down Compliance: How Codifying The Mandatory Presidential Audit Can Improve Tax Morale And Tax Compliance, Emma Braden

UC Law Journal

A functioning government requires tax revenue, and democratic legitimacy requires a nation’s leaders be subject to the same laws as its citizens. The president’s tax behavior is an opportunity to address both needs. With a projected increase in the tax gap, there is a need for a politically viable, cost-effective way to increase revenues. In December 2022, the House Ways and Means Committee released a report revealing that the IRS failed to perform mandatory annual audits of former President Donald Trump’s taxes. The revelation imperils public trust in tax administration, requiring a new approach to guarantee accountability for a president’s …

I Spy With My Many Eyes: The Government’S Unbridled Use Of Your Surveillance Cameras, Brian A. Weikel

UC Law Journal

Surveillance cameras are increasingly used by the public and law enforcement to prevent and prosecute criminal activity. Individuals and companies can grant law enforcement access to private cameras for both live monitoring feeds and recorded footage, thereby creating a quasi- public network of private cameras. According to the third-party doctrine, the government can access all information from these surveillance cameras without a subpoena or warrant and without infringing upon Fourth Amendment privacy protections. However, as technology advances and the prevalence of surveillance cameras rises, this per se rule fails to account for one’s reasonable expectation of privacy in the public …

“Cancel Culture” And Criminal Justice, Steven Arrigg Koh

UC Law Journal

This Article explores the relationship between two normative systems in modern society: “cancel culture” and criminal justice. It argues that cancel culture—a ubiquitous phenomenon in contemporary life—may rectify deficiencies of over- and under-enforcement in the U.S. criminal justice system. However, the downsides of cancel culture’s structure—imprecise factfinding, potentially disproportionate sanctions leading to collateral consequences, a “thin” conception of the wrongdoer as beyond rehabilitation, and a broader cultural anxiety that “chills” certain human conduct—reflect problematic U.S. punitive impulses that characterize our era of mass incarceration. This Article thus argues that social media reform proposals obscure a deeper necessity: transcendence of blame …

The Unfulfilled Promise Of Environmental Constitutionalism, Amber Polk

UC Law Journal

The political push for the adoption of state-level “green amendments” in the United States has gained significant traction in just the last couple of years. Green amendments add an environmental right to a state’s constitution. Five such amendments were made in the 1970s in Pennsylvania, Montana, Hawaii, Massachusetts, and Illinois. This Article looks in depth at the case law that has developed the contours of these constitutional environmental rights in the wake of the political revival of environmental constitutionalism in the United States. I distill two lessons from this jurisprudence. First, constitutional environmental rights are interpreted by the courts as …

Masthead

UC Law Journal

No abstract provided.

Pricing Corporate Governance, Albert H. Choi

UC Law Journal

Scholars and practitioners have long theorized that by penalizing firms with unattractive governance features, the stock market incentivizes firms to adopt the optimal governance structure at their initial public offerings (IPOs). This theory, however, does not seem to match with practice. Not only do many IPO firms offer putatively suboptimal governance arrangements, such as staggered boards and dual-class structures, but these arrangements have been gaining popularity among IPO firms. This Article argues that the IPO market is unlikely to provide the necessary discipline to incentivize companies to adopt the optimal governance package. In particular, when the optimal governance package differs …

Restraining Chatgpt, Roee Sarel

UC Law Journal

ChatGPT is a prominent example of how Artificial Intelligence (AI) has stormed into our lives. Within a matter of weeks, this new AI—which produces coherent and humanlike textual answers to questions—managed to become an object of both admiration and anxiety. Can we trust generative AI systems, such as ChatGPT, without regulatory oversight?

Designing an effective legal framework for AI requires answering three main questions: (i) is there a market failure that requires legal intervention?; (ii) should AI be governed through public regulation, tort liability, or a mixture of both?; and (iii) should liability be based on strict liability or a …

“It’S Like I’Ve Got This Music In My Mind”: Protecting Human Authorship In The Age Of Generative Artificial Intelligence, Justine Magowan

UC Law Journal

The music industry stands on the brink of a crisis. With unpredictable judicial standards that are inconsistent across the country, plaintiffs seeking to protect their musical works against copyright infringement face a heavy burden of proof, especially when facing defendants who are more wellknown and more well-funded. Not only that, but plaintiffs may not receive their day in court given that powerhouse artists like Taylor Swift, Sam Smith, and Bruno Mars have chosen to settle rather than defend their musical works in court. Now, Generative Artificial Intelligence (“Generative A.I.”) and A.I.-generated music will inevitably send the music industry into a …

Proving Actionable Racial Disparity Under The California Racial Justice Act, Colleen V. Chien, W. David Ball, William A. Sundstrom

UC Law Journal

Racial disparity is a fact of the United States criminal justice system, but under the Supreme Court’s holding in McCleskey v. Kemp, racial disparities—even sizable, statistically significant disparities—do not establish an equal protection violation without a showing of “purposeful discrimination.” The California Racial Justice Act (CRJA), enacted in 2020 and further amended in 2022, introduced a first-of-its-kind test for actionable racial disparity even in the absence of a showing of intent, allowing for relief when the “totality of the evidence demonstrates a significant difference” in charging, conviction, or sentencing across racial groups when compared to those who are “similarly situated” …

Comparing Reasons For Hate Crime Reporting Using Racialized Legal Status, Pamela Ho

UC Law Journal

In the past decade, Latinxs and Asians in the United States have experienced an increase in hate crime victimization. Previous research has identified correlations between hate crime reporting and race. However, few statistical studies examine the intersection of race, immigration status, and hate crime reporting. This Note explores how racialized legal status applies to Latinx and Asian communities respectively and how racialized legal status affects a hate crime victim’s decision to report the crime to police. This Note then sets forth some recommendations for increasing hate crime reporting rates by Latinx and Asian victims.

Public Enforcement And Disability: A United States-South Korea Comparison, Joonghan (Joseph) Jo

UC Law Journal

The Americans with Disabilities Act (ADA) was enacted with the hope that it would solve issues regarding discrimination against the disabled. However, the outcome fell short of its aspirations. Many people with disabilities still suffer from ongoing discrimination. This Note argues that the ADA’s heavy reliance on private enforcement is the main reason for this shortcoming. This Note analyzes the effectiveness of public enforcement in South Korea under the Act on the Prohibition of Discrimination Against Persons with Disabilities, Remedy Against Infringement of Their Rights (Korean Disability Discrimination Act. This Note then argues that civil law country-style public enforcement based …

Masthead

UC Law Journal

No abstract provided.

Religious Liberty As A Judicial Autoimmune Disorder: The Supreme Court Repudiates Its Own Authority In Kennedy V. Bremerton School District, Andrew Koppelman

UC Law Journal

No abstract provided.

Governmental And Semi-Governmental Federal Charitable Entities, Ellen P. Aprill

UC Law Journal

The standard view of the relationship between government and the nonprofit charitable sector treats them as separate and distinct. But they are not. Numerous federal agencies have statutory authority to receive tax-deductible charitable deductions. Their ability to do so, however, undermines the oversight accomplished through the constitutionally mandated appropriations process. Congress has also created many nonprofit tax-exempt organizations. These entities enjoy flexibility as to fundraising, investment, and spending that government agencies lack. However, they avoid the accountability that various federal statutes impose on government agencies, on the one hand, and that state nonprofit laws accomplish for private nonprofit organizations, on …

Interstate Immunity And The Uncompleted Constitution, Mark D. Rosen

UC Law Journal

In a recent decision, the Supreme Court held that “the founding generation took as a given” that states would be constitutionally immune to suit in the courts of sister states, overruling an earlier ruling that interstate immunity is governed by state law. This Article rejects both approaches, showing that interstate immunity was unaddressed by the original Constitution and the Eleventh Amendment. But though interstate immunity is what this Article calls a “constitutional omission,” what ultimately fills it must be federal law. Filling in a constitutional omission necessarily requires a choice among options—what philosophers call an exercise of agency. But the …

“Engines Of The Ruling Party”: The Establishment Clause And The Power Politics Of “Managing Diversity”, Robert A. Destro

UC Law Journal

No abstract provided.

The Remains Of The Establishment Clause, Ira C. Lupu, Robert W. Tuttle

UC Law Journal

The very first words of the Bill of Rights mark religion as constitutionally distinctive. Congress may not enact laws respecting an establishment of religion—in particular, acts of worship, religious instruction, or proselytizing. A pluralist, liberal democracy requires separation of civil government from these distinctively religious activities. From the middle of the twentieth century until Justice O’Connor’s retirement in 2005, the Supreme Court energetically animated that principle of distinctiveness. In a series of decisions in the last decade, however, the Court has upended its longstanding approach to what is distinctive about religion in constitutional law. Notably, this process of change has …

The New Fourth Era Of American Religious Freedom, John Witte Jr., Eric Wang

UC Law Journal

The U.S. Supreme Court has entered decisively into a new fourth era of American religious freedom. In the first era, from 1776 to 1940, the Court largely left governance of religious freedom to the individual states and did little to enforce the First Amendment Religion Clauses. In the second era, from 1940 to 1990, the Court “incorporated” the First Amendment into the Fourteenth Amendment Due Process Clause and applied both a strong Free Exercise Clause and a strong Establishment Clause against federal, state, and local governments alike. In the third era, from the mid-1980s to 2010, the Court softened the …

Class Actions’ Ethical “Kiss”: The Class Action Lawyer’S Client Is The Class, Eli Wald

UC Law Journal

The legal ethics of class actions is a mess, with many lingering, unresolved questions and conflicting answers. The culprit is a fundamental lack of agreement regarding the identity of the client, without which it is impossible to consistently resolve concerns about conflicts of interest and determine the scope of lawyers’ duties of competence and communication to the class, class representative, and class members. This Essay offers a simple solution to this disagreement: the class lawyer represents the class as an entity, not the class representatives and members, who are constituents of the class client. While conceptually simple, treating the class …

Complex Litigation Funding: Ethical Problem Or Ethical Solution?, W. Bradley Wendel, Joshua P. Davis

UC Law Journal

Commentators have worried that third-party funding, particularly in complex litigation, may give rise to ethical concerns. In this Essay, we explore an alternative possibility: third-party funding may solve ethical problems rather than cause them.

We explain why third-party funding can comply with the letter and spirit of the relevant ethical rules and why whether it causes or cures ethical problems depends on the setting. We note that if third-party funding agreements are properly structured—protecting, for example, lawyers’ independent judgment—they should not pose ethical problems. On the contrary, in some contexts third-party litigation funding may ameliorate tensions between clients and counsel. …

Debt As Corporate Governance, Tomer S. Stein

UC Law Journal

Corporate law is dominated by an equity-only view of corporate governance that centers on management-shareholder dynamics. This Article expands the management-shareholder paradigm by developing a novel integrated theory of corporate governance that fully accounts for the firm’s debt. To that end, the Article carries out a comprehensive analysis of debtholders’ influence on how the firm runs its affairs. This analysis reveals that debt does not merely function as a discipliner. Rather, debt forms an integral part of the ownership and governance structure of the firm through the covenants that debtholders routinely contract for. These covenants create poison pills and other …

The Ethics Of Defense Counsel’S Communications With Absent Class Members Before Class Certification, Candice Enders, Joshua P. Davis

UC Law Journal

Attention to how courts address the ethics of defense counsel’s communications with absent class members before class certification is valuable for two primary reasons. First, it provides insight into how courts approach ethics in class actions generally. In the class action context, courts tend to pay more attention to the relevant procedural rules—particularly to Federal Rule of Civil Procedure 23—than they do to codes of professional responsibility. Relatedly, they also seek to promote the policy goals that animate Rule 23 rather than to emphasize formalistic distinctions, such as when class counsel begin to represent absent class members or whether class …

The Ethics Gap: Mdl Leadership Versus The Attorney-Client Relationship, Lauren E. Godshall

UC Law Journal

Mass torts cases take up a massive swath of the nation’s federal court docket yet are governed by little to no substantive procedural laws. Instead, a host of regular practices for multidistrict litigation (“MDL”) management have emerged through repetition. One such practice is the selection of a plaintiff steering committee (“PSC”): a small group of experienced plaintiffs’ attorneys that control and direct the litigation from initiation through settlement or other resolution. The PSC is extremely important—determining which experts to use, which injuries to focus on, and so forth. Yet there are no set rules dictating PSC management of the litigation, …

Where Neutrality Stops And Reality Begins: Why Considering Identity Is Vital To Lead And Class Counsel Selection, Melissa Mortazavi

UC Law Journal

When courts consider a choice of class or lead counsel in multidistrict litigation (“MDL”) or class action suits, they often follow the idea of a neutral partisan model. Such a model idealizes lawyer conduct as a blank conduit for client interests. In theory, lawyers should be able to bring their legal expertise absent any personal experiences, individualized identity, and morality outside of practice. But the reality is that neither lawyers nor their clients can fully divorce their identities or moral viewpoints from the legal system.

This Essay argues that an identity-blind choice of class or lead counsel, grounded in a …

Local Restrictions On Renewable Energy Siting In The United States, Jesse Honig

UC Law Journal

Climate change has arrived. The next decade will provide critical opportunities to avoid the most devastating impacts of climate change. The decisions we take over the next ten years will be the difference between moderate levels of warming and warming that will cause catastrophic changes to the planet. To avoid the most devastating impacts of climate change, the United States must rapidly transition the energy sector to almost entirely renewable energy. Notwithstanding the rapid growth of renewable energy over the past decade, the United States must add renewable capacity at an unprecedented rate. To meet this challenge, many states have …