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Full-Text Articles in Law
Note – The Right To Be Forgotten, Robert Kirk Walker
Note – The Right To Be Forgotten, Robert Kirk Walker
UC Law Journal
Information posted to the Internet is never truly forgotten. While permanently available data offers significant social benefits, it also carries substantial risks to a data subject if personal information is used out of context or in ways that are harmful to the subject’s reputation. The potential for harm is especially dire when personal information is disclosed without a subject’s consent. In response to these risks, European policymakers have proposed legislation recognizing a “right to be forgotten.” This right would provide persons in European Union countries with a legal mechanism to compel the removal of their personal data from online databases. …
The Expressive Cost Of Corporate Immunity, Gregory M. Gilchrist
The Expressive Cost Of Corporate Immunity, Gregory M. Gilchrist
UC Law Journal
Is it possible to justify imposing criminal liability on corporations? Two basic aspects of criminal law have no application to corporations: Corporations cannot be jailed and they cannot form mental states. Moreover, there is reason to think that much of the deterrent effect generated by corporate criminal liability could be generated more efficiently by civil liability. Still, the demand for criminal prosecution of corporations remains high. This Article seeks to understand why we have corporate criminal liability, and it concludes that expressivism is necessary to justify the practice. Expressivism justifies punishment by reference to the benefits of a statement of …
Going Rogue: Stop The Beach Renourishment As An Object Of Morbid Fascination, Mary Doyle, Stephen J. Schnably
Going Rogue: Stop The Beach Renourishment As An Object Of Morbid Fascination, Mary Doyle, Stephen J. Schnably
UC Law Journal
Scholarly response to the Supreme Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection has focused on the plurality’s strong advocacy of a judicial takings doctrine. We take a different tack. While the concept of judicial takings is worthy of serious attention, it is wrong to treat the plurality opinion as an ordinary object of analysis. It is, instead, the emanation of a Court going rogue. Three basic symptoms of the pathology stand out. First, sleight of hand: The plurality opinion purports to be about an institutional issue—can a state court commit a taking?—while slipping …
Wrong About The Right: How Courts Undermine The Fair Cross-Section Guarantee By Confusing It With Equal Protection, Nina W. Chernoff
Wrong About The Right: How Courts Undermine The Fair Cross-Section Guarantee By Confusing It With Equal Protection, Nina W. Chernoff
UC Law Journal
This Article exposes a surprising doctrinal distortion that has unfolded since the Supreme Court first established the Sixth Amendment standard for the right to a jury selected from a fair cross-section of the community. A significant number of courts are erroneously applying the test for a violation of the Fourteenth Amendment’s equal protection guarantee to Sixth Amendment claims. As a result, criminal defendants are being deprived of the unique Sixth Amendment fair cross-section right, which encompasses more than just protection from discrimination. Under the Sixth Amendment, a defendant need not allege that any state actor discriminated in the jury selection …
Diversity May Be Justified, Anita Bernstein
Diversity May Be Justified, Anita Bernstein
UC Law Journal
What about diversity as a rationale for affirmative action is compelling enough to justify the hurts it inflicts on individuals? Judges, legislators, public opinion, and implementers of diversity programs in education and the workforce have defended their initiatives either with vague, anodyne, ill-founded paeans or, more often, with silence about what the rationale achieves. They have offered no justification of diversity. From the premise that any state action that generates (or even risks) harm must be supported with reason, this Article undertakes the task of justification. What makes diversity unique among the rationales for affirmative action, this Article argues, is …
The Expressive Cost Of Corporate Immunity, Gregory M. Gilchrist
The Expressive Cost Of Corporate Immunity, Gregory M. Gilchrist
UC Law Journal
Is it possible to justify imposing criminal liability on corporations? Two basic aspects of criminal law have no application to corporations: Corporations cannot be jailed and they cannot form mental states. Moreover, there is reason to think that much of the deterrent effect generated by corporate criminal liability could be generated more efficiently by civil liability. Still, the demand for criminal prosecution of corporations remains high. This Article seeks to understand why we have corporate criminal liability, and it concludes that expressivism is necessary to justify the practice. Expressivism justifies punishment by reference to the benefits of a statement of …
Wrong About The Right: How Courts Undermine The Fair Cross-Section Guarantee By Confusing It With Equal Protection, Nina W. Chernoff
Wrong About The Right: How Courts Undermine The Fair Cross-Section Guarantee By Confusing It With Equal Protection, Nina W. Chernoff
UC Law Journal
This Article exposes a surprising doctrinal distortion that has unfolded since the Supreme Court first established the Sixth Amendment standard for the right to a jury selected from a fair cross-section of the community. A significant number of courts are erroneously applying the test for a violation of the Fourteenth Amendment’s equal protection guarantee to Sixth Amendment claims. As a result, criminal defendants are being deprived of the unique Sixth Amendment fair cross-section right, which encompasses more than just protection from discrimination. Under the Sixth Amendment, a defendant need not allege that any state actor discriminated in the jury selection …
Note – The Right To Be Forgotten, Robert Kirk Walker
Note – The Right To Be Forgotten, Robert Kirk Walker
UC Law Journal
Information posted to the Internet is never truly forgotten. While permanently available data offers significant social benefits, it also carries substantial risks to a data subject if personal information is used out of context or in ways that are harmful to the subject’s reputation. The potential for harm is especially dire when personal information is disclosed without a subject’s consent. In response to these risks, European policymakers have proposed legislation recognizing a “right to be forgotten.” This right would provide persons in European Union countries with a legal mechanism to compel the removal of their personal data from online databases. …
Understanding And Incentivizing Biosimilars, Jason Kanter, Robin Feldman
Understanding And Incentivizing Biosimilars, Jason Kanter, Robin Feldman
UC Law Journal
Congress recently passed the Biosimilars Act in an attempt to replicate the success that generic small molecule drugs have enjoyed under the Hatch-Waxman Act. The Biosimilars Act provides a pathway for biosimilars to achieve quicker and less expensive FDA approval than what is required for a new biopharmaceutical. There is, however, greater uncertainty and cost associated with achieving the coveted biosimilarity status. This reflects the complex production methods of biopharmaceuticals, along with the many factors that can alter the structure and function of such drugs. This Article analyzes the Biosimilars Act and the draft guidances recently released by the FDA. …
Going Rogue: Stop The Beach Renourishment As An Object Of Morbid Fascination, Mary Doyle, Stephen J. Schnably
Going Rogue: Stop The Beach Renourishment As An Object Of Morbid Fascination, Mary Doyle, Stephen J. Schnably
UC Law Journal
Scholarly response to the Supreme Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection has focused on the plurality’s strong advocacy of a judicial takings doctrine. We take a different tack. While the concept of judicial takings is worthy of serious attention, it is wrong to treat the plurality opinion as an ordinary object of analysis. It is, instead, the emanation of a Court going rogue. Three basic symptoms of the pathology stand out. First, sleight of hand: The plurality opinion purports to be about an institutional issue—can a state court commit a taking?—while slipping …
Diversity May Be Justified, Anita Bernstein
Diversity May Be Justified, Anita Bernstein
UC Law Journal
What about diversity as a rationale for affirmative action is compelling enough to justify the hurts it inflicts on individuals? Judges, legislators, public opinion, and implementers of diversity programs in education and the workforce have defended their initiatives either with vague, anodyne, ill-founded paeans or, more often, with silence about what the rationale achieves. They have offered no justification of diversity. From the premise that any state action that generates (or even risks) harm must be supported with reason, this Article undertakes the task of justification. What makes diversity unique among the rationales for affirmative action, this Article argues, is …
Fetal Risks Of Environmental Chemicals: The Motherisk Approach To The Organic Mercury Fish Consumption Scare, Zahra Jahedmotlage, Kathie Schoeman, John Bend, Gideon Koren
Fetal Risks Of Environmental Chemicals: The Motherisk Approach To The Organic Mercury Fish Consumption Scare, Zahra Jahedmotlage, Kathie Schoeman, John Bend, Gideon Koren
UC Law Journal
While fish is rich in essential nutrients and women are encouraged to consume fish products, fish may contain methylmercury, which is an established neurotoxin to the fetus. Not surprisingly, there are high levels of anxiety among women of reproductive age regarding fish consumption. To be able to counsel women in this complex area, we have developed a two-step program: (1) probing women of reproductive age for their perceptions regarding the safety of consuming fish, and (2) piloting an intervention program with women of reproductive age to ensure mercury levels are below the recently proposed Lowest Observable Adverse Effect Level. This …
The Relevance Of Immaturities In The Juvenile Brain To Culpability And Rehabilitation, Beatriz Luna
The Relevance Of Immaturities In The Juvenile Brain To Culpability And Rehabilitation, Beatriz Luna
UC Law Journal
The overreaching aim of this Article is to describe how developmental cognitive neuroscience can inform juvenile law. Fundamental to culpability and responsibility is the ability to effectively execute voluntary executive behavior. Executive function, including cognitive control and working memory, has a protracted development with key aspects continuing to mature through adolescence. These limitations in executive control are due in great part to still maturing brain processes. Gray and white matter changes are still becoming established in adolescence, enhancing efficiency and the speed of brain processing supporting executive control. Dopamine, a neurotransmitter that underlies reward processing and learning, peaks in adolescence—supporting …
Note – Corporate Codes Of Conduct: Binding Contract Or Ideal Publicity?, Haley Revak
Note – Corporate Codes Of Conduct: Binding Contract Or Ideal Publicity?, Haley Revak
UC Law Journal
Over the last twenty years, most multi-national corporations have adopted corporate codes of conduct, partially due to incentives from the U.S. government. These self-imposed ethical credos set out basic policy standards to guide employees and officers, but they also serve to assure consumers that the products they purchase come from a principled organization. But as of yet, there has been no successful suit against a multinational corporation for violations of its code. Are these codes then nothing more than government-sanctioned golden publicity? Through the recent Doe v. Wal-Mart Stores, Inc. suit, this Note analyzes whether corporate codes of conduct are …
Bridging Developmental Neuroscience And The Law: Child-Caregiver Relationships, Ross A. Thompson
Bridging Developmental Neuroscience And The Law: Child-Caregiver Relationships, Ross A. Thompson
UC Law Journal
Advances in neuroscience are changing understanding of the biological foundations of human development and have implications for legal analysis. As with any period of rapid scientific progress, however, new ideas are subject to misinterpretation and errors in application. This Article offers guidance on how to avoid such problems and consider carefully the applications of developmental neuroscience to legal policy and practice, with a particular emphasis on caregiver-child relationships. Three principles are discussed. First, the most confident applications of developmental neuroscience to legal policy occur when the conclusions of neuroscience are consistent with those of behavioral research. This is because their …
The Neurobiology Of Attachment To Nurturing And Abusive Caregivers, Regina M. Sullivan
The Neurobiology Of Attachment To Nurturing And Abusive Caregivers, Regina M. Sullivan
UC Law Journal
Decades of research have shown that childhood experiences interact with our genetics to change the structure and function of the brain. Within the range of normal experiences, this system enables the brain to be modified during development to adapt to various environments and cultures. Experiences with and attachment to the caregiver appear particularly important, and recent research suggests this may be due, in part, to the attachment circuitry within the brain. Children have brain circuitry to ensure attachment to their caregivers. Attachment depends on the offspring learning about the caregiver in a process that begins prenatally and continues through most …
Creating A Clearinghouse To Evaluate Environmental Risks To Fetal Development, Kate E. Bloch
Creating A Clearinghouse To Evaluate Environmental Risks To Fetal Development, Kate E. Bloch
UC Law Journal
In this Article, the Author explores current challenges to accessing and evaluating information about environmental risks to fetal development. She investigates these challenges within the context of the existing regulatory framework for environmental risks. As a result of this analysis, she highlights the need for and proposes creating an independent non-profit umbrella organization—a clearinghouse—to collect, distill, interpret, and make accessible the research on environmental threats to fetal development and to apply that research to evaluating relevant U.S. policy. The Author defines broadly the research on fetal development that lies within the charge of the clearinghouse to include not only research …
Poor Women And The Protective State, Khiara M. Bridges
Poor Women And The Protective State, Khiara M. Bridges
UC Law Journal
This Article puts poor, pregnant women’s current experience with the state into conversation with the science of prenatal and early childhood brain development and looks at the effect on women’s autonomy of government regulation of individual behaviors that may harm fetal brain development. Drawing upon ethnographic fieldwork with poor, pregnant women that reveals that indigent women’s current experience with the regulatory state is one in which their autonomy is already grossly compromised, this Article argues that the infringement on vulnerable populations’ privacy rights is guaranteed should the government attempt to manage or reduce assaults on prenatal brain development through the …
Note – The Government Can Read Your Mind: Can The Constitution Stop It?, Mara Boundy
Note – The Government Can Read Your Mind: Can The Constitution Stop It?, Mara Boundy
UC Law Journal
Functional Magnetic Resonance Imaging (“fMRI”) technology produces a four-dimensional map of brain activity, such as perception, memory, emotion, and movement. fMRI scans track the flow of blood to the various regions of the brain in real time and reveal the subject’s response to particular stimulus. For example, an fMRI scan might reveal blood flow to a subject’s memory center in response to a picture of the house in which she was raised. On the one hand, this technology seems to produce a model of a physical attribute and offer insight into the workings of the human brain. On the other, …
Developmental Neuroscience, Children’S Relationships With Primary Caregivers, And Child Protection Policy Reform, Lois A. Weithorn
Developmental Neuroscience, Children’S Relationships With Primary Caregivers, And Child Protection Policy Reform, Lois A. Weithorn
UC Law Journal
Empirical research has confirmed that the harms of child maltreatment can affect almost every area of an individual’s functioning and can reverberate across relationships, generations, and communities. Most recently, investigators at the U.S. Centers for Disease Control have called for policymakers to prioritize prevention and amelioration of child maltreatment in a manner consistent with its approach to other major public health problems.This Article—an outgrowth of a panel on Relationships with Caregivers and Children’s Neurobiological Development, which took place at a recent symposium, Law and Policy of the Developing Brain, co-sponsored by the University of California’s Hastings College of the Law …
A Tale Of Three Families: Historical Households, Earned Belonging, And Natural Connections, Allison Anna Tait
A Tale Of Three Families: Historical Households, Earned Belonging, And Natural Connections, Allison Anna Tait
UC Law Journal
Cases targeting family regulation in the 1970s turned, for the first time, on three contrasting and sometimes competing theories of the family: historical households, earned belonging, and natural connections. This Article introduces and defines these three theories and offers a descriptive account of how the theories were used by litigants and the Supreme Court alike to measure discrimination, evaluate the rights of individual family members, and, often, increase household equality. The theory of historical households, developed with great success by Ruth Bader Ginsburg, invoked a Blackstonian family defined by gender hierarchy and the law of coverture, and posited that this …
Jumpstarting The Stalled Gender Revolution: Justice Ginsburg And Reconstructive Feminism, Joan C. Williams
Jumpstarting The Stalled Gender Revolution: Justice Ginsburg And Reconstructive Feminism, Joan C. Williams
UC Law Journal
Justice Ruth Bader Ginsburg, since about 1980, has been painted as a feminist committed to “formal equality.” Recent work has contested this depiction. This Article uncovers additional evidence that Ginsburg’s goal was not mere formal equality; her goal was to deconstruct the breadwinner-homemaker system in which men and women were seen as belonging to separate spheres. Ginsburg saw this system as subordinating women, and in that sense is an antisubordination theorist. Yet lumping her together with Catharine MacKinnon, often seen as legal feminism’s foremost antisubordination theorist, proves confusing for a number of reasons. A chief difference is their attitudes towards …
Principles And Persons: Ruth Bader Ginsburg, Raconteuse, Kenneth L. Karst
Principles And Persons: Ruth Bader Ginsburg, Raconteuse, Kenneth L. Karst
UC Law Journal
Before she was appointed to the judiciary, Ruth Bader Ginsburg was often identified as the nation’s foremost legal advocate for women’s claim to equal citizenship. Eventually, some years after she had become Justice Ginsburg, she was assigned to write the opinion for the Supreme Court’s most sweeping decision validating that claim. Throughout her career as lawyer and judge, she has had a number of occasions to tell the stories of her former clients and other women. This Article considers several themes in those references, in particular her persistent efforts to give credit to other women for their courage and their …
Justice Ginsburg And Religious Liberty, John D. Inazu
Justice Ginsburg And Religious Liberty, John D. Inazu
UC Law Journal
Justice Ginsburg has left an important mark on many areas of the Supreme Court’s jurisprudence, but she has written relatively little in the area of religion. This relatively small footprint increased significantly in the opinion that she wrote in the Court’s 2010 decision in Christian Legal Society v. Martinez. This Article examines three strands of Justice Ginsburg’s jurisprudence leading up to that opinion: religion, government funding of expression, and equality. It first traces Justice Ginsburg’s religious liberty views through four facets of her legal career: her role as an advocate, her opinions on the D.C. Circuit, her Supreme Court nomination …
“The Experience And Good Thinking Foreign Sources May Convey”: Justice Ginsburg And The Use Of Foreign Law, Jeremy Waldron
“The Experience And Good Thinking Foreign Sources May Convey”: Justice Ginsburg And The Use Of Foreign Law, Jeremy Waldron
UC Law Journal
This Article is an appreciation of Justice Ruth Bader Ginsburg’s defense of the Supreme Court’s use of foreign law, particularly her arguments about what our courts can learn from the work that foreign courts have done. The Article extends and develops Justice Ginsburg’s account, drawing an analogy between courts learning from one another, and scientists learning from one another in a community of inquiry.
The Law Of Gender Stereotyping And The Work-Family Conflicts Of Men, Stephanie Bornstein
The Law Of Gender Stereotyping And The Work-Family Conflicts Of Men, Stephanie Bornstein
UC Law Journal
This Article looks back to the early equal protection jurisprudence of the 1970s and Ruth Bader Ginsburg’s litigation strategy of using men as plaintiffs in sex discrimination cases to cast a renewed focus on antidiscrimination law as a means to redress the work-family conflicts of men. From the beginning of her litigation strategy as the head of the ACLU Women’s Rights Project, Ginsburg defined sex discrimination as the detrimental effects of gender stereotypes that constrained both men and women from living their lives as they wished—not solely the minority status of women. The same sex-based stereotypes that kept women out …
Note – Repercussions Of China’S High-Tech Rise: Protection And Enforcement Of Intellectual Property Rights In China, Emily Gische
Note – Repercussions Of China’S High-Tech Rise: Protection And Enforcement Of Intellectual Property Rights In China, Emily Gische
UC Law Journal
China’s growing technological prowess and role as a global economic player has vastly increased the number of U.S. and international companies doing business in China. Despite the country’s continued building of a basic intellectual property infrastructure, IP violations remain a common complaint of foreign businesses. This Note analyzes China’s developing IP policy in the context of World Trade Organization Dispute Settlement 362, which the United States initiated against China in 2007. The dispute concerned the protection and enforcement of IP rights and involved both copyright and trademark issues. This Note also examines subsequent national IP strategy pronouncements issued by both …
Note – Escaping Forced Gang Recruitment: Establishing Eligibility For Asylum After Matter Of S-E-G-, Alexandra Grayner
Note – Escaping Forced Gang Recruitment: Establishing Eligibility For Asylum After Matter Of S-E-G-, Alexandra Grayner
UC Law Journal
After the Board of Immigration Appeals denied asylum to three siblings fleeing forced gang recruitment in Matter of S-E-G-, asylum claims based on forced gang recruitment are almost categorically denied. This Note describes how courts interpret and apply Matter of S-E-G- unfairly to preclude viable asylum claims based on membership in a particular social group. Given the chance to establish the facts in their individual records, certain individuals from Central America who have fled forced gang recruitment should be able to establish their eligibility for asylum. Proving that they are members of particular social groups which are both “socially visible” …
A Profession, If You Can Keep It: How Information Technology And Fading Borders Are Reshaping The Law Marketplace And What We Should Do About It, Stephen Gillers
A Profession, If You Can Keep It: How Information Technology And Fading Borders Are Reshaping The Law Marketplace And What We Should Do About It, Stephen Gillers
UC Law Journal
Technology is changing the way we do business. It has made cross-border trade in goods and services easy. Capital is finding ways to profit from the law business. Lawyers strive to serve clients wherever they need help, including outside their jurisdiction of admission. These changes not only affect how American law firms work, they challenge our system for licensing and regulating lawyers. The traditional geocentric model for regulating the bar, based on physical place of practice, is unstable today because lawyers can practice physically in many places and (virtually) in every place, yet no place in particular. The next twenty …
Issue Preclusion Effect Of Class Certification Orders, Antonio Gidi
Issue Preclusion Effect Of Class Certification Orders, Antonio Gidi
UC Law Journal
This Article addresses the peculiarities of issue preclusion in class action certification, particularly after the approval of the American Law Institute’s Principles of the Law of Aggregate Litigation in 2010 and the U.S. Supreme Court decision in Smith v. Bayer Corp. in 2011. After discussing the reasons why orders that deny class certification cannot have issue preclusive effect, this Article analyzes proposals to address the problem.