Digital Commons Network^™

Fifty Years After Estelle V. Gamble—Where Does Carceral Health Law Go From Here?, James René Jolin, Jenean Docter, Benjamin A. Barsky

Faculty Scholarship

Fifty years ago, the US Supreme Court decided Estelle v.Gamble—a landmark case commonly known for establishing a duty on the government to provide health services to incarcerated people, whether before or after conviction. In this column, we offer a brief critical reappraisal of Estelle by reviewing its demanding legal standard and identifying a set of related litigation barriers that stymie the availability of relief in federal court. Given these constraints, we argue for a carceral health law paradigm that moves beyond the current, dominant focus on litigation.We use Medicaid law and policy as a case study to explore the …

Police Surveillance And The Perils Of Techno-Solutionism, Prithika Balakrishnan

Faculty Scholarship

This Article charts domestic law enforcement’s use of video surveillance, beginning in the backlash to the Civil Rights movement in the late 1960s, continuing through the War on Terror and, more recently, in the context of the post-George Floyd public critiques of policing. The undergirding philosophy of policing’s embrace of surveillance technology is techno-solutionism, the view that all complex social situations can be simplified to measurable data primed for quick-fix, unbiased, algorithmic answers. While technology may have initially been adopted by police to respond to specific problems, it has changed the problems themselves, altered the array of potential solutions, and …

Until The Cages Are Empty: Transgender Criminal Defense As A Necessary Tactic Of Prison-Industrial Complex Abolition, Lark Mulligan

UC Law Journal of Race and Economic Justice

This article is a practical guide in the fight to abolish the prison-industrial complex as well as institutionalized transphobia and cissexism. Focusing specifically on the practice area of criminal defense, this article proposes a model that must be replicated across jurisdictions wherever transgender people are criminalized. By instituting an interdisciplinary team approach that is non-hierarchical, strengths-based, trauma-informed, community focused, holistic, harm-reductionist, and abolitionist, practitioners will find their role in this movement as one of consensus building, knowledge sharing, community empowerment, institutional navigation, and access distribution. As discrimination and violence against trans people continues to rise, practitioners must learn to not …

Racial Privacy I: The Quest For Whiteness By European Immigrants In America, Najarian R. Peters

UC Law Journal of Race and Economic Justice

Privacy law scholars have disregarded and under-theorized racial privacy practices, meaning racial/ethnic passing, in the United States of America. This article is a defining first step in conceptualizing racial passing as an indispensable privacy protection practice, that affirmed the following individual and group privacy rights of European immigrants, who became White in America: (1) the right to be let alone, (2) the right to erasure of stigmatized racial identity, and inherent in that right, (3) the right to forget an assigned racial identity, burdened by socio-economic deprivation and predation. Whiteness was required to access citizenship for the vast majority of …

Foreword, Grace Perez

UC Law Journal of Race and Economic Justice

No abstract provided.

The Feminist Challenge To Global Justice: How International Law Reproduces And Resists Patriarchy, Shashwati Wagle

UC Law SF Journal on Gender and Justice

This article seeks to introduce feminist approaches to international law. It examines how traditional state-centric security concepts in international law reflect masculine ideals of military strength and sovereignty, contrasted with human security approaches addressing intimate violence and displacement. The piece details international law’s recognition of sexualized violence in armed conflict as a war crime and analyzes international institutions, noting their advancements in gender protections alongside failures to fully incorporate intersectionality. Overall, feminist engagement positions international law as a transformative process challenging gendered power structures.

California’S Attempt To Confront Implicit Bias In Jury Selection: A Critique Of Ab 3070, Sarah Bodisco

UC Law SF Journal on Gender and Justice

No abstract provided.

The Political Economy Of Fashion Sustainability Regulation, Meital Peleg Mizrachi, Rachel Chambers

UC Law Business Journal

The global fashion industry is one of the world’s most polluting and exploitative sectors, emitting more greenhouse gases than all international flights and maritime shipping combined, driving extensive water contamination and waste, and relying on labor conditions that remain chronically unsafe and underpaid. Regulation has attempted to respond, but with limited success. Existing sustainability oversight—ranging from import bans and human rights due diligence statutes to environmental taxes and voluntary industry frameworks—remains fragmented and unevenly enforced, shaped by geopolitical tensions, protectionist agendas, and shifting policy priorities. This Article reviews the rapidly evolving landscape of fashion sustainability regulation over the past decade …

Completely Abandon Complete Auto: Why Modern Tax Policy Challenges Require Removing The Commerce Clause’S Restrictions On State Taxation, Peter Nielsen

UC Law Business Journal

The Complete Auto four-prong test is the modern analytical framework for courts to analyze whether a state-level tax discriminates against interstate commerce in violation of the Dormant Commerce Clause. The test asks whether (i) the taxpayer has substantial nexus to the taxing state, (ii) the tax is fairly apportioned to reflect the taxpayer’s activities in the state, (iii) the tax discriminates against interstate economic activity in favor of local activity, and (iv) the tax is fairly related to the goods and services provided by the state. The Complete Auto test faces critiques from both judges and scholars for its inconsistent …

California (+6.5) Vs. Sportsbooks: Cooperative Federalism & The Future Of Sports Gambling In California, Kyle Geffon

UC Law Business Journal

No abstract provided.

No Cuts: How Hayao Miyazaki Highlights The United States’ Inadequacy In Protecting Foreign Authors’ Integrity, Bridget Johns

UC Law SF Communications and Entertainment Journal

Although the United States joined the Berne Convention in 1989, U.S. copyright law reflects a restricted approach to moral rights protection. Unlike many Berne signatories, the U.S. largely frames copyright as an economic right rather than as a way to protect artistic integrity. Japanese law, by contrast, treats moral rights as central to creative work protections, emphasizing the importance of the work’s dignity and author’s intent. This incongruity has significant consequences in the globalized era, particularly when foreign works are distributed within the U.S. Weak statutory moral rights protections leave authors vulnerable to misattribution and distortion without meaningful recourse. This …

What The Court Tells Reporters: A Discourse Analysis Of Press Interviews With The Justices Since 2000, Brown James

UC Law SF Communications and Entertainment Journal

The Supreme Court of the United States is among the most influential institutions in American life, yet it is also well known to be one of the most secluded and inaccessible. By and large, the justices only pass their thoughts and decision-making processes to the public via their official written opinions, and seldom grant interviews to reporters. General press coverage of the Court has been given considerable scholarly attention, but the limited interviews the justices grant to the press receive comparatively little attention. This article examines those interviews by analyzing 82 press interviews with active and retired justices from 2000 …

Copyright In Film Adaptations: Protecting Moral Rights In The Age Of The Internet, Amanda Mell

UC Law SF Communications and Entertainment Journal

No abstract provided.

Mama Meant To Make You Cry: Who Protects Children From Their Parents’ Social Media Rage Bait?, Danya Hajjaji

UC Law SF Communications and Entertainment Journal

No abstract provided.

Municipal Zoning Challenges For Solar Energy, Patrick Seroogy

UC Law Environmental Journal

No abstract provided.

Ecocide In Palestine: A Call For A New Criminal Designation For Environmental Crimes, Carley A. Bomrad

UC Law Environmental Journal

Gaza has frequently been the target of environmental damage from Israel. Dating back to its immigration to Palestine, Israel has impacted Palestine’s water systems, destroyed its natural landscape, and forcibly changed much of the landscape through invasive species. This environmental harm is only worsened by the repeated conflict in the region, which has damaged infrastructure and water systems and caused contamination of air, water, and soil. Gaza was already struggling with these environmental concerns, coupled with its susceptibility to climate change, when the conflict with Israel intensified in October 2023. All progress that was being made to strengthen Gaza’s infrastructure …

Liability Standards In Autonomous Robotic Surgery, Hee Jung Cho

UC Law Science and Technology Journal

No abstract provided.

Do We Really Have The Right To Breathe Clean Air?, Rebecca Bratspies

UC Law Journal

Setting environmental standards involves judgment calls about what level of protection is “adequate,” what technical measures are “feasible” and even what level of pollution is consistent with “clean air, clean water and a healthful environment.” On his first day in office, Trump drove a truck through those judgment calls by repealing all the executive orders related to racial justice, environmental justice, and climate change that had been guiding agency exercises of discretion. Since then, his Administration has done its best to gut environmental protections—repealing long-standing regulations and abandoning customary decision practices. Overall, the Trump Administration has created a regulatory void, …

“The State V. The State:” Feuding Prosecutors And The Battle Over Post-Conviction Concessions, Dana Bazelon

UC Law Journal

One of the persistent questions of criminal law is how prosecutorial authority is allocated among different sovereign entities: Courts and scholars have wrestled time and again with questions of how criminal enforcement power should be divided between federal and state law enforcement. But the balance of power between state and local prosecutors has received far less attention, in large part because, until recently, the allocation of authority has been remarkably consistent: The overwhelming majority of state law enforcement power, by statute and by custom, has been concentrated in the hands of local prosecutors. In most states, state attorneys general have …

Transgender Rights Federalism: Protecting Gender-Affirming Care In State Courts, Julia Hunter

UC Law Journal

In United States v. Skrmetti, the Supreme Court rejected a landmark equal protection challenge to Tennessee’s ban on gender-affirming care for minors. In doing so, the Court substantially hindered or, at worst, entirely foreclosed federal equal protection challenges to gender-affirming care bans. Many Americans consider the Supreme Court the final arbiter of their constitutional rights. For decades, they would have been correct—when the Court was consistently expanding fundamental liberties, there was little incentive to look elsewhere for protection. But in eras of federal rights retrenchment, state courts have shown a willingness to step forward and interpret their constitutions independently and …

Global Tax Decluttering, Shu-Yi Oei, Diane M. Ring

UC Law Journal

Major global players—most prominently the Organisation for Economic Cooperation and Development (OECD) and European Union—have recently begun advocating that countries “declutter” their tax systems to tidy up, repeal, or eliminate pre-existing domestic anti-abuse tax rules. The reasoning is that these country-level rules are now duplicative or burdensome in light of a new global tax agreement spearheaded by the OECD and G20 and multilaterally agreed upon in 2021 by over 140 countries. Yet, this new multilateral regime is still in the process of being rolled out and is entirely untested.

In this Article, we examine this recently emergent “tax decluttering movement” …

How Ai Destroys Institutions, Woodrow Hartzog, Jessica Silbey

UC Law Journal

Civic institutions—like the rule of law, higher education, and a free press—are the backbone of democratic life. They are the mechanisms through which complex societies encourage cooperation and stability, while also adapting to changing circumstances. The real power of institutions is their ability to evolve and adapt within a hierarchy of authority and framework for roles and rules while maintaining legitimacy in the knowledge produced and action taken. Purpose-driven institutions built around transparency, cooperation, and accountability empower individuals to take intellectual risks and challenge the status quo. This happens through the machinations of interpersonal relationships within organizations that comprise institutions. …

Tear Down The Wall: Why Requiring The Fda And The Pto To Share Information Will Improve The Decision-Making Of Both Agencies, Robin C. Feldman, Gideon Schor

Faculty Scholarship

An invisible wall separates the U.S. Food and Drug Administration (FDA) from the U.S. Patent and Trademark Office (PTO). This wall blocks inter-agency communication, depriving the PTO of information relevant to patent applications and depriving the FDA of information relevant to drug-approval applications. Consequently, it is too easy for a drug company to tell the PTO ‘our drug is new’ (in hopes of speeding a patent grant) while telling the FDA ‘our drug is not new’ (in hopes of speeding drug approval). Better communication between the FDA and PTO would increase agency accuracy by preventing inconsistent representations, and would increase …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Foreword, Marlene Coss

UC Law Constitutional Quarterly

No abstract provided.

Nondelegation In Winter (Again), David Zaring

UC Law Constitutional Quarterly

Last term, the Supreme Court – these days thought to be intensely interested in reviving a formalist separation of the branches of government – has finally abandoned the quintessence of that project, a revitalization of the nondelegation doctrine. This essay argues that the Court’s decision in FCC v. Consumers’ Research reflects a pragmatic turn: rather than rewriting the test for nondelegation, the Court retained the old test, gave up on formalist reform, and indicated that it will be looking elsewhere for separation of powers remedies. The result is a jurisprudence that remains formally attached to its precedents while embracing the …

The Supreme Court’S New Map Of Federalism, Stephen M. Griffin

UC Law Constitutional Quarterly

No abstract provided.

The American Samoan Oxymoron: The Noncitizen National And The Meaning Of Citizenship, Craig R. Shagin, Delaram Rezaeikhonakdar

UC Law Constitutional Quarterly

This article examines the legal distinction between U.S. citizens and noncitizen nationals, with a particular focus on American Samoa. While residents of other U.S. territories—such as Guam, Puerto Rico, and the U.S. Virgin Islands—are granted U.S. citizenship by legislation, American Samoa remains the only unincorporated U.S. territory whose inhabitants are recognized as nationals but not citizens. This distinction results in significant political disabilities for American Samoans even when residing in a state, as they may not vote, hold public office, or serve on juries. The article argues that there is no substantive distinction between “citizen” and “noncitizen national” beyond the …

The Florida “Educational” And Employer Censorship Statutes: Constitutional Challenges, Joel E. Davidson

UC Law Constitutional Quarterly

No abstract provided.

Originalism Chokes: The 2024 Trump Cases, Lawrence Rosenthal

UC Law Constitutional Quarterly

By 2024, a majority of the Justices of the Supreme Court had expressed the view that to be legitimate, constitutional adjudication must be based on the original meaning of the Constitution’s text. Anything else, these Justices have argued, is illegitimate judicial policymaking. Yet, in what were likely the two most critical and high-profile cases decided in 2024, the Court, including its avowedly originalist Members, made no use of originalism. In the first case, the Court faced the question whether a State could bar President Trump from running for President under Section 3 of the Fourteenth Amendment. In the second, the …