Digital Commons Network^™

Personal Jurisdiction And The Fifth Amendment, Scott Dodson

Faculty Scholarship

The Supreme Court has avoided clarifying the relationship between federal-court personal jurisdiction, congressional statutes, and the Fifth Amendment. Until June 2025, that is. In that month, the Court decided two important cases involving constraints on a federal court's exercise of personal jurisdiction outside of Rule 4(k)(1)(A), which typically ties federal-court personal jurisdiction to state-court personal jurisdiction. This brief essay explains and analyzes those cases, situating them in the Court's larger agenda for personal jurisdiction. It also discusses some open questions raised by the decisions and the role that personal jurisdiction in the United States may now play on the global …

The Supreme Court And Public Opinion, Scott Dodson

Faculty Scholarship

Alexander Hamilton famously called the Supreme Court the “least dangerous branch” because it was reliant on Congress for funding and the President for enforcement. To manage its relationship with the political branches in a way that affords the Court both independence from them and the necessary assistance from them, the Court must cultivate the affection of the electorate. Several doctrinal tools facilitate that cultivation, and, historically, the Court has used those tools effectively to maintain relatively high public-approval rates. But over the last decade, those rates have fallen significantly to historic lows. This paper interrogates why that is. Tracing the …

Trumpian Impoundments In Historical Perspective, Zachary S. Price

Faculty Scholarship

During the election campaign and the first 100 days of his second term, President Donald Trump and key figures in his administration took actions and made statements suggesting that they believe the President holds a constitutional power to "impound," or decline to spend, appropriated funds. They also suggested that they believe the executive branch is better suited than Congress to represent the common good in federal spending. Although both these arguments have historical antecedents, both are deeply flawed, and courts should reject them in an appropriate case. Rather than continue its trajectory toward executive governance, the United States should adhere …

Appropriations Presidentialism, Zachary S. Price, Matthew B. Lawrence, Eloise Pasachoff

Faculty Scholarship

Since the start of the second Trump administration, the executive branch has attempted to change how federal spending works by asserting unilateral, centralized authority to condition, delay, cancel, or otherwise disrupt federal obligations and expenditures without regard to longstanding legal understandings and norms.  This appropriations presidentialism is unprecedented in scope and degree, and it threatens to weaken a key congressional check on executive policy, while also disrupting the settled expectations of civil servants, contractors, grantees, program beneficiaries, and others who were counting on continued federal funding for certain programs or activities.  Those injured by these executive actions are understandably turning …

Minimax Under Pressure: The Case Of Tennis, Ben Depoorter, Simon Jantschgi, Ivan Lendl, Miha Mlakar, Heinrich N. Nax

Faculty Scholarship

A series of articles has tested von Neumann’s minimax theory against behavioral evidence based on field data from professional sports. The evidence has been viewed and collectively cited as positive evidence that elite athletes in their familiar sports contexts mix well and behave in line with minimax. In this paper, based on open state-of-the-art tennis data and analytics, we shall uncover new and significant evidence against minimax at the very top of the game, where previously, such results had not been obtained. The kinds of behavioral deviations from minimax that we find become apparent, because we enrich the test strategy …

Legislatively Erased: The Failure Of Privacy Legislation To Protect People Connected To The Criminal Legal System, Kate Weisburd, Chaz Arnett

Faculty Scholarship

No abstract provided.

Water And The Western City, Dave Owen

Faculty Scholarship

No abstract provided.

The Ivf Exception: Strengthening Free Exercise Challenges To Abortion Bans, Io Jones

UC Law Constitutional Quarterly

The fallout of the Dobbs v. Jackson Women’s Health Organization decision has included two seemingly distinct but critically related dynamics. First, religiously motivated plaintiffs are filing lawsuits challenging abortion bans on free exercise grounds. These lawsuits argue, in accordance with current free exercise doctrine, that a state’s compelling interest in protecting “fetal life” is undermined by secular exceptions to abortion bans. Second, state lawmakers have been forced to confirm that their state abortion bans do not apply to in vitro fertilization (IVF), a fertility treatment that regularly requires the discarding of embryos. This confluence of factors raises a critical question …

Secretive Sheriffs: Opacity And Variation In California's Jail Responses To Covid-19, Hadar Aviram, Aparna Komarla

Faculty Scholarship

Agnotology is the study of culturally induced ignorance or doubt, particularly the publication of inaccurate or misleading scientific data. In this Article, we draw attention to a disturbing site of agnotology: healthcare in California jails. Often obscured because of the attention to state prisons, jails were sites of opacity and misinformation, largely because of sheriffs’ refusal to collaborate with data collection efforts—both coordinated by the state and solicited through non-profits.

Building on the data collection effort of the Covid In-Custody Project and on public advocacy efforts of the #StopSanQuentinOutbreak coalition and its off-shoots, we show the chasm between data on …

Standing And Prosecutorial Discretion: Why The Doctrine Of Standing Precludes Challenges To Categorical Non-Enforcement, Michael Diamandakis

UC Law Constitutional Quarterly

No abstract provided.

The Federal Government Cannot Prohibit The Exercise Of A Core State Sovereign Function: Haaland V. Brackeen And Expanding The Anticommandeering Doctrine, George Bach

UC Law Constitutional Quarterly

The Tenth Amendment’s anticommandeering doctrine limits the ability of the federal government to issue directives to state legislative bodies and executive officials. While the Supreme Court’s path through the Tenth Amendment has been less than direct, New York v. United States and United States v. Printz clarified that the federal government cannot “commandeer” state legislatures or executives to implement federal policy. While the core of the Court’s approach to anticommandeering remains focused on halting congressional efforts to press state agents into implementing federal regulatory programs, the Haaland v. Brackeen decision may be read to expand the anticommandeering principle. That is, …

A Legal Herstory Of Wwii ‘Comfort Women’— Chapters: Past, Present, And Beyond, Linny Kit Tong Ng

UC Law SF Journal on Gender and Justice

No abstract provided.

Targeted And Ticketed: Student Ticketing And The Perpetuation Of The School-To- Prison Pipeline, Jasmine Richardson-Rushin, Angelica Jimenez, Gwendolyn Walker, Hannah Benton Eidsath

UC Law Journal of Race and Economic Justice

The National Center for Youth Law (NCYL) is a non-profit organization working to end the harms of the juvenile, municipal and criminal legal systems, including by decriminalizing normal adolescent behavior, ending financial consequences, and improving children’s access to adequate developmentally appropriate treatment. Our work prioritizes eradicating the school-to-prison pipeline, and abolishing harmful fines, fees and economic sanctions through the Debt Free Justice Campaign (DFJ).

In school districts across the nation, students receive fees and fines as consequences for school-based behavior. Students are policed and ticketed for age-appropriate behaviors and disciplinary matters such as littering, truancy, and underage drinking and smoking. …

Taking The Name Brown In Vain: Separate But Equal, Brown And The Harvard Case, Matthew Coles

UC Law Journal of Race and Economic Justice

No abstract provided.

Remedies For Decades Of Hbcu Underfunding: Can Coalition V. Maryland Serve As A Model, Or Is Government “Persuasion” Needed?, John K. Pierre, Gail S. Stephenson

UC Law Journal of Race and Economic Justice

No abstract provided.

“Prisoners Of The Union”: Emporium Capwell And The Decline Of Concerted Activity Against Racial Discrimination, Andrew Hull

UC Law Journal of Race and Economic Justice

This paper tracks the development of judicial understanding of labor unions’ status under Section 9 of the National Labor Relations Act as the “exclusive representative” of employees for the purposes of bargaining with the employer, focusing on the how the Supreme Court case Emporium Capwell v. Western Community Addition has led to a gradual restriction of the scope of protected concerted activity by workers suffering discrimination. This ossification reveals how rigid, overly theoretical understanding of the law that is divorced from practical contexts often leads to reinforcing racial disparities in a capitalist mode of production. I further argue Emporium Capwell …

Navigating The Growing Prospects And Growing Pains Of Managed Aquifer Recharge, Dave Owen, Helen Dahlke, Andrew Fisher, Ellen Bruno, Michael Kiparsky

Faculty Scholarship

Increasing water demands and declining groundwater levels have led to rising interest in managed aquifer recharge. That interest is growing in the United States—the focus of this article—and elsewhere. Increasing interest makes sense; managed aquifer recharge can reduce water-supply challenges and provide environmental benefits, sometimes with lower costs than alternative water-management approaches. But managed aquifer recharge also faces growing pains, which will make it difficult for projects to scale up and may limit the benefits provided by those projects that do go forward. Some of the problems arise from the challenges of finding physically suitable locations for managed aquifer recharge; …

Determinants Of Success On The Bar Exam: One Law School’S Experience 2010–2023, Morris Ratner, Stephen N. Goggin, Stefano Moscato, Margaret Greer, Elizabeth Mcgriff

Faculty Scholarship

No abstract provided.

Betwixt And Between: Restorative Justice, Dei, And Education Carcerality, Thalia Gonzalez, Alyssa Faith Scott

Faculty Scholarship

American K-12 public education is at a critical anti-civil rights inflection point amidst a rapidly changing landscape of federal and state education law and policy. From local anti-literacy measures to state “three strikes” exclusionary school discipline legislation to punitive federal executive orders, new legal mechanisms are conjoining to produce public school climates marked by structural violence, and the erasure of students with multiple marginalized identities. Attending to these political and legal realities is a growing cluster of legal scholarship empirically categorizing, and theoretically challenging, the rise of such anti-education civil rights obstructions. Though diverse in scope, analyses prominently center the …

Board Of Directors Quarterly Meeting - Open Session Book 12/06/2024, Uc Law Sf

2024 Board of Directors Agenda and Materials

No abstract provided.

The Australian Experience With Environmental Offsets: An Illusory Tool For Addressing Biodiversity Loss And Climate Change?, Robert J. Fowler, Phillipa C. Mccormack, Alexandra S. Wawryk, Margaret Castles, Emily Whenan

UC Law Environmental Journal

Recent studies, including by administrative integrity bodies, Parliamentary committees and former ‘insiders’ of Australian regulatory bodies, show serious shortcomings in the operation of biodiversity and carbon offsets in Australia. Specifically, the benefits attributed to the offset mechanism in both contexts have been criticised as illusory in practice. This leads us to question whether it is possible to accomplish carbon emission reduction and biodiversity conservation goals through a governance framework that includes offsetting. We assess the evolution of offsets as a regulatory and voluntary mechanism, offering a critical perspective on the Australian experience. Australia has been an enthusiastic early adopter of …

Truth In Advertising For Environmental Sustainability, Robin Mercedes Rotman, Aidan David-Pennington

UC Law Environmental Journal

“Sustainability” is in—but what does that term mean, when applied to products, services or brands? This article explores existing Federal Trade Commission (“FTC”) oversight of “sustainable” claims in marketing, centering on the FTC’s Guidelines for the Use of Environmental Marketing Claims (often referred to as the “Green Guides”). It analyzes thousands of public comments filed in a recent FTC quasi-rulemaking docket to inform proposed revisions to the Green Guides. The article suggests that the FTC include guidance on “sustainable” claims in its next revision to the Green Guides, and further recommends that the FTC formally extend the Green Guides to …

Artificial Intelligence And Cracks In The Foundation Of Intellectual Property, Robin Feldman

UC Law Journal

Our implicit image of progress and the standards we use to calibrate human contribution to progress are quietly at risk from the onslaught of artificial intelligence (AI). AI has the potential to significantly shrink the pool of creative work that is protectable by intellectual property (IP) law and the range of information that is protectable, as well as shrinking the value proposition of IP regimes themselves.

As society faces this changing landscape, we must tread carefully to distinguish fears about AI from the task of defining the boundaries of intellectual property, whose theoretic concepts aren’t designed to bear such weighty …

Toxic Minimalism On The “Yolo” Court: The Supreme Court’S Dangerous Muddle In First Amendment And Speech-Adjacent Law, Matthew D. Bunker, Emily Erickson

UC Law SF Communications and Entertainment Journal

No abstract provided.

Impossibility Of Artificial Inventors, Matt Blaszczyk

UC Law Science and Technology Journal

Recently, the United Kingdom Supreme Court decided that only natural persons can be considered inventors. A year before, the United States Court of Appeals for the Federal Circuit issued a similar decision. In fact, so have many of the courts all over the world. This Article analyzes these decisions, argues that the courts got it right, and finds that artificial inventorship is at odds with patent law doctrine, theory, and philosophy. This Article challenges the intellectual property (IP) post-humanists, exposing the analytical and normative perils of their argumentation, and recommends against getting rid of the nominally central place of humans …

Re(De)Fining Patent Eligibility, Lauren Hong

UC Law Science and Technology Journal

The patent system is at the heart of America’s innovation scene, serving as the lifeline for America’s status as an industrial titan as it seeks to inspire inventors worldwide to innovate and discover. The confines of patent-eligible subject matter were set out by Congress through the power vested by the Constitution, and these boundaries have been re(de)fined as the Supreme Court has carved out exceptions to these standards including: laws of nature, abstract ideas, and natural phenomena being excluded from patentability. In response to criticisms of legal uncertainty surrounding patent-eligibility under the current regime, two senators have introduced The Patent …

Pack Your Bags…We’Re Moving To The Public Domain: The Expiration Of Copyright Terms And Its Implications On Future Protection, Sophie Ganion

UC Law SF Communications and Entertainment Journal

The following Note addresses the expiration of copyright terms for a multitude of creative works and the various implications of that expiration for their future IP protection. It explores the conflicting perspectives of stakeholders, from the excitement of artists and everyday creatives versus the concerns of industry leaders about the potential erosion of their copyright monopolies. Drawing from landmark cases like Baker v. Selden and Dastar Corporation v. Twentieth Century Fox Film Corp., this Note highlights the complex questions surrounding copyright expiration and the strategic use of trademark protection. The Note emphasizes the necessity for coherent legal frameworks to ensure …

The Federal Rules Of Constitutional Procedure, Ramon Feldbrin

UC Law Journal

Judicial review has distinct purposes, difficulties, and modalities, but there are no guideposts as to how these features ought to be addressed in procedural terms. The reason is a deep-seated, but largely unarticulated, assumption that constitutional litigation is simply governed by the same rules as other civil litigation in the federal courts. Yet the premise is fundamentally false. This Article draws new attention to rules and practices that have historically regulated constitutional cases and set them apart from the typical way all other cases make their way through the judicial system. These procedures include, among other things, the requirement to …

Debt End: The “Texas Two-Step” And The Constitution, Kirk Rider

UC Law Journal

The “Texas Two-Step” is a novel means of forcing a settlement agreement on mass-tort claimants. Corporations utilize the Two-Step bankruptcy strategy using a state law merger statute to split itself in two. One half of the corporation retains all the value, and the other half retains all the liabilities associated with the mass tort claims. The shell-company, which inherits the liabilities and then files a bankruptcy petition, uses the Bankruptcy Code’s powers to attempt a forced settlement on all current and future litigants and shield its financially healthy parent company in the process. Throughout this Note, I will survey the …

Patent Infringement, Private Law, And Liability Standards, Robert P. Merges

UC Law Journal

Private law governs interactions among private parties. A large body of private law theory holds that private law is aimed at corrective justice: doing justice as between the two parties to a private interaction (the private law dyad). This in contrast to public law, the law of state-citizen interactions, whose purpose is usually said to be the pursuit of society-wide fairness, often understood as distributive justice. Torts, contracts and property are the three classic areas of private law in common law jurisdictions. A sizeable literature now concerns itself with classic private law topics as they apply to intellectual property (IP). …