Digital Commons Network^™

Beyond Loper Bright: Iterative Construction At The National Labor Relations Board, Fred B. Jacob, Anne Marie Lofaso

UC Law Journal

“[The agency’s actions] express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions—impressions which may lie beneath consciousness without losing their worth. The board was created for the purpose of using its judgment and its knowledge.”
- Justice Oliver Wendell Holmes, 1907

Trust matters. In the 1935 National Labor Relations Act, Congress entrusted the heavy responsibility of protecting labor peace to a board of experts and an administrative agency, both steeped with experience in resolving labor disputes and fluent in the science of industrial relations. This was no accident. For decades prior, federal courts …

Masthead

UC Law Journal

No abstract provided.

Table Of Contents

UC Law Journal

No abstract provided.

Privacy And Disinformation, Tiffany C. Li

UC Law Journal

All three branches of the federal government have wrestled with how the law could or should regulate social media applications to mitigate the harms of disinformation. However, most proposed solutions make the same critical mistake: Lawmakers may focus on speech regulation or even economic regulation to solve for disinformation but these solutions do not actually address contemporary, technological vectors of disinformation. In today’s increasingly technologically driven global speech environment, the lynchpin for disinformation is not speech but data.

In particular, algorithmic personalization is a new, technological factor that makes disinformation especially harmful. Luckily, data protection and privacy regulation can greatly …

Rap Snitches: A New Framework To Evaluate Rap Lyrics And Creative Expressions As Evidence, Chris Kenefick

UC Law Journal

Rap music has earned its prominent place in American music culture.1 It provides a unique creative outlet for artists to share their experiences and criticize the systems in which they live. Rap lyrics, often metaphorical or exaggerated, have been weaponized by prosecutors to attack the character of artist-defendants at a level not seen with other modes of creative expression. The lyrics of an artist are turned against them in a manner that invites unfair prejudice and improper character evidence into legal proceedings. In the 2020s, major progress has been made to curb this practice, with several jurisdictions introducing legislation that …

Wide Nets, Heavy Burdens: Unpacking Executive Order 14105’S Final Rule, Breanna Li

UC Law Journal

Executive Order 14105 “Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern” was enacted to protect U.S. national security interests in light of China’s military technological growth. This Executive Order creates an outbound investment review program that restricts investments by a U.S. person into companies in specified countries operating in certain technology sectors. This Note will discuss the background of geopolitical tensions between the United States and China, review E.O. 14105, and argue that the program it creates results in burdensome unintended consequences to the U.S. economy. These unintended circumstances include: (1) high regulatory …

The Autonomy Default Paradigm In Contract Law, Hanoch Dagan, Michael Heller

UC Law Journal

You can scribble an agreement on a napkin or hire lawyers to negotiate a hundred-page contract. Either way, most of your contractual obligations will not be in your document. They will be in the background rules contract law applies absent your express agreement. Justifying these defaults is a core task of contract theory; getting them right is a core task of contract law.

This Article introduces the autonomy default paradigm, a conceptually coherent and normatively attractive account of contract law defaults. We show that defaults are justified to the extent they enhance our autonomy, understood as self-determination. They vindicate our …

An Age Of Statutes Or An Age Of Executive Orders? Conflicting Judicial And Presidential Visions Of Policymaking, Daniel A. Farber

UC Law Journal

Two decades ago, then-Professor Elena Kagan hailed the era of presidential administration in which Presidents would launch major policy initiatives within the executive branch and end run congressional gridlocks. Since then, the President’s role in the regulatory state has snowballed. In his second term, President Donald Trump has used this authority to the utmost in a quantum leap in presidential administration. Paradoxically, the same Justices who have championed the unitary executive have created roadblocks to presidential policymaking. Overruling the Chevron doctrine, the Court has sought to cabin the role of agencies, and thus the newly supreme President, in statutory administration. …

Brewing Solidarity: Rights Consciousness And Class Consciousness In Coffeeshop Organizing, Brishen Rogers

UC Law Journal

Almost ten thousand baristas have unionized since 2022 in cafes across the country. Their effort breaks with recent history in several respects. For example, baristas have used a novel “worker-to-worker organizing” model in which workers themselves—rather than union staff and leadership—design and manage campaigns. Also, while scholars and unionists have argued for decades that the National Labor Relations Board’s secret ballot elections process is a dead end, baristas have used that process quite effectively, winning over 85% of their elections against the major company involved. Through their organizing efforts, baristas have centered the issues and voices of LGBTQ+ workers and …

The Forever Fight Against Forever Chemicals: Analyzing Loopholes In California’S Pfas Ban For Consumer Products, Jake B. Goldman

UC Law Journal

Per- and polyfluoroalkyl substances (PFAS) are a class of synthetic chemicals used for their unique qualities in manufacturing across numerous industries. PFAS, also known as “forever chemicals,” persist in the environment for long periods of time and cause serious health risks to consumers. Given mounting research on PFAS and their adverse health effects, the California legislature passed four laws banning the chemicals in specific consumer products.

This Note argues that three new California laws requiring manufacturers to replace PFAS with “the least toxic alternative” are inadequate because they are ambiguous. This ambiguity will invite litigation and create business challenges by …

Dei: Definitely Earned It–A Review Of Contemporary Dei Initiatives Against Emerging Legal Frameworks, Joseph Cremona

UC Law Journal

Since 2024, Diversity, Equity, and Inclusion (DEI) programs have ignited a volatile political debate. Fierce opposition continues to attack their very existence. On one hand, proponents of DEI programs argue that such initiatives are a pivotal mechanism for ensuring that historically marginalized communities receive professional opportunities in America. On the other hand, opponents of DEI insist that these programs are detrimental because they prioritize the advancement of minority groups at the expense of their majority counterparts. With the recent enactment of multiple executive orders by President Trump, DEI programs have become the target of a plethora of lawsuits. These legal …

Recent And Forthcoming

UC Law Journal

No abstract provided.

Table Of Contents

UC Law Journal

No abstract provided.

Religious Freedom & The Fertilized Egg, Rabea Benhalim

UC Law Journal

Anti-abortion activism and litigation have challenged established caselaw on the legality of in vitro fertilization (IVF) and the legal treatment of IVF fertilized eggs. These challenges rely on conservative Christian ideologies that full personhood occurs at fertilization. Litigation has primarily arisen out of wrongful death suits and divorce proceedings, wherein a party either has destroyed or seeks to dispose of frozen blastocysts. Some legislatures now seek to regulate the treatment of IVF fertilized eggs vis-á-vis legislation, as politicians increasingly seek to ban any destruction of human fertilized eggs by legally defining human life as beginning at fertilization. However, the question …

Beyond Comprehension: Why Tax Code Complexity Necessitates Irs Deference, Doron Narotzki, Tamir Shanan, Julianne Jones, Ori Barel, Yifat G. Ben-Yaakov, Tomer Surujon, Revital Yusupov, Or Haim Anidjar

UC Law Business Journal

This Article argues that deference to Internal Revenue Service (“IRS”) interpretations is essential for the effective interpretation of U.S. federal income tax law due to the technical demands inherent in this uniquely complex area. The U.S. federal income tax code, often considered one of the most intricate legal systems, consists of dense, specialized language, nuanced policy considerations, economic theories, and frequently updated provisions. Judges, as generalists, face a daunting challenge in interpreting this complex, ever-evolving body of law without the specialized expertise that the IRS professionals bring. Frequent amendments further add to this complexity, layering additional provisions that require in-depth …

A Comparative Analysis Of The Lack Of Contractual Protections In Female Dominated Opportunities: Collegiate Competitive Dancers And Cheerleaders Compared To Ncaa Student-Athletes And National Pageant Organization Titleholders Compared To Employees/Independent Contractors, Abigail Church

Michigan Journal of Gender & Law

The lack of contractual protections and regulations throughout female-dominated opportunities is abundantly clear in the collegiate competitive dance & cheer and the national pageant organization titleholders. Collegiate competitive dancers and cheerleaders have no standardized contractual requirements regarding their commitment to an academic institution or their engagement in NIL opportunities. Their NCAA recognized student-athlete counterparts, on the other hand, have extensive regulations and protections in place for both categories of contracts. In the pageant industry, pageant titleholders have no protection against the all-too-common procedural and substantive unconscionability of their service agreements, which can be found in confidentiality and arbitration clauses. In …

Gender And Consensus On The Courts, Kaleigh A. Ruiz

Michigan Journal of Gender & Law

During group deliberation, women tend to be the harbingers of compromise, vying for consensus on even the most contentious topics. However, women cannot succeed in this endeavor if gender bias prevents their voices from being heard. In federal courts, collaboration is essential to reaching the simple majority needed to resolve a case. While the courts already function under norms of collegiality during deliberations, the practice of writing a separate opinion to acknowledge disagreement with a majority opinion remains relatively common. In this Article, I test two competing theories as to the effects of women judges on consensus. On one hand, …

Health Care Civil Rights: Addressing The American Maternal Mortality Disparity Through Health, Law, And Policy, Victoria Pedri

Michigan Journal of Gender & Law

The United States is facing a pressing issue in maternal health, standing out as uniquely dangerous among similarly situated nations, with significant disparities in maternal mortality rates, particularly affecting Black American pregnant people. This paper, “Health Care Civil Rights: Addressing the American Maternal Mortality Disparity Through Health, Law, and Policy,” argues that by addressing the root cause of the Black Maternal Mortality Disparity (BMMD)—structural racism—and implementing rigorous, enforced standards of care, the United States can ensure safer childbirth experiences for Black pregnant people. Utilizing intersectional and anti-racist frameworks, the analysis identifies inferior medical care, particularly in diagnosing and treating preventable …

Brief Of Edward A. And Doris Zelinsky In The Appellate Division, Third Department, New York Supreme Court, Edward A. Zelinsky, Doris Zelinsky

Amicus Briefs

To combat COVID, New York in 2020 forbade an out-of-state employee like the petitioner to commute into his New York office, forcing him to instead work at his home in Connecticut. New York now takes the remarkable position that it can tax the income Governor Cuomo forced this out-of-state employee to earn at his home exclusively outside New York. That position is as wrong as it sounds.

Both as a matter of New York law and of federal constitutional law under the Due Process and dormant Commerce Clauses, New York may not tax the income the petitioner earned exclusively at …

The Role Of First Amendment In Equal Protection And Affirmative Action Analysis: The Compelling Governmental Interest, Simona Grossi

UC Law Constitutional Quarterly

The Supreme Court’s decision in Students for Fair Admissions v. Harvard College has transformed the legal framework governing university admissions, sharply limiting race-conscious policies and compelling institutions to align their diversity objectives with the newly shaped heightened scrutiny under the Equal Protection Clause. Concurrently, the Trump administration’s broad-based attack on diversity, equity, and inclusion (DEI) programs—culminating in executive orders restricting race-conscious initiatives— has further intensified the legal and political pressure on colleges and universities striving to foster inclusive academic environments. This article contends that the First Amendment—particularly its protections of academic freedom and free speech—plays a critical and underutilized role …

Response: Foreign Affairs Prosecutions And Cybercrime, Mailyn Fidler

Law Faculty Scholarship

A response to Professor Steven Koh's new article on how the U.S. makes global criminal justice policy. Prof. Fidler examines what a decade of cybercrime indictments reveals about America's approach to prosecuting foreign hackers. Three things stand out: * Beyond Attribution - These indictments aren't just about naming and shaming, or about the typical dimensions of criminal alw. They're sophisticated foreign policy tools that coordinate and moderate international sanctions and global norms. * Intertwined with Cooperation - The indictments alternately create space for and slow the tempo of international cooperation on this issue, according to U.S. interests. * Power Projection …

Public Service Summer Stipend Meetings, Cardozo Center For Public Service Law

2025–2026 Flyers

Cardozo offers stipends to provide funding for students working in unpaid public service summer internships. To be eligible for the stipend, you MUST attend one of the three meetings listed above.

(How) Is Plea Bargaining Justified?, Palma Paciocco

Articles & Book Chapters

No abstract provided.

Reclaiming Bodily Autonomy Through Gullah Geechee Natural Healing, Tamaray Yvonne White

Electronic Theses and Dissertations

In today’s sociopolitical climate, restrictive reproductive laws continue to disproportionately target Black women, reinforcing historic patterns of racialized and gendered oppression. This thesis argues that Black women will recommence their usage of traditional herbal healing as both a survival strategy and an act of reclaiming bodily autonomy in defiance of hostile legal, financial, and medical systems. The Gullah Geechee community serves as a blueprint for this transition, offering cultural continuity, intergenerational knowledge, and a model for community-based healthcare and resistance. By tracing the historical necessity of herbal medicine among Gullah Geechee women, this study situates ancestral natural healing within contemporary …

The Quest For Budget Armor: Public Expenditures, Positive Rights, And Separation Of Powers In Washington's State Constitution, Kristen L. Fraser

Washington Law Review

In 2012, Washington’s landmark McCleary decision confirmed and expanded previous interpretations of the state constitution’s “paramount duty” clause, affirming a vital positive right to education and a judicial willingness to enforce it against the other branches. Notwithstanding a tense six-year period of judicial supervision after the ruling, ultimately the state legislature enacted broad education funding reforms and the appropriations and revenues to implement the additional resources for schools. Given competition among stakeholders for public funding for state programs, in the post-McCleary period, other litigants have asked courts to find similar positive constitutional rights to state services and funding. So …

Challenging The State To Protect The Right To A Future Healthy Environment, Grace Messimer

Cardozo International & Comparative Law Review (CICLR) Blog

Climate change litigation has been increasingly used in different countries to fight the climate crisis through various judicial systems. As of December 2022, there have been over 2,000 climate-related cases in international courts, federal courts, and more local courthouses, with litigation taking place in 65 different jurisdictions. Climate change litigation includes “cases that raise material issues of law or fact relating to climate change mitigation, adaptation or the science of climate change.”

This post was originally published on the Cardozo International & Comparative Law Review on January 21, 2025. The original post can be accessed via the Archived Link button …

The High Cost Of Law School Casebooks, Jeffrey Bellin

William & Mary Bill of Rights Journal

Commentators have forecasted the demise of high-priced commercial casebooks for two decades. Yet little has changed. This Symposium Essay explores the headwinds facing free and low-cost books in the law school casebook market. It suggests that the biggest problem is “casebook selection inertia.” Given the centrality of the assigned casebook to a typical law school course, professors face strong incentives to make a safe choice from among the leading casebooks—typically those published by the handful of established academic presses who set the highest prices. These choices stick, not only determining the book that will be used for that professor’s future …

Expanding The Foreign National Prohibition To Combat Russian Interference In U.S. Elections, Hailey Arnett

William & Mary Bill of Rights Journal

In 2016, the Russian government purchased political advertisements from U.S. social media companies like Facebook to sway the U.S. presidential election. These purchases violated the foreign national prohibition (“the Prohibition”), which Congress codified as part of the Federal Election Campaign Act Amendments of 1974 (FECA). This Note explains why Congress should expand the Prohibition to capture the recipients of independent expenditures that violate the Prohibition and fine people who run online platforms that receive independent expenditures or contributions made by foreign nationals in violation of the Prohibition.

Part I describes current U.S. case law on domestic and foreign campaign finance …

Table Of Contents

MC Law Review

No abstract provided.

Adjunct Faculty List

MC Law Review

No abstract provided.