Digital Commons Network^™

Imperfect Access: Structural Barriers And External Threats To Preventive Care, Dorit Rubenstein Reiss, Richard H. Hughes Iv

Faculty Scholarship

Access to healthcare in the United States is often partial and inequitable. This is due in large part to a highly fragmented public-private system of providing health insurance coverage to its citizens. Yet, through incremental policy developments, the United States provides more comprehensive preventive care coverage across both public and private sources of coverage than in other areas of healthcare. Moreover, it has developed safety net programs intended to gap-fill access for those without insurance coverage. This is not surprising; like other countries, the United States realize that in addition to being just and equitable, broader access to prevention has …

The Ninth Circuit’S Nod To Anti-Vaccine Advocates, Richard H. Hughes Iv, Dorit R. Reiss

Faculty Scholarship

On June 7, 2024, a three-judge panel of the Ninth Circuit issued a decision that, while it did not go as far as anti-vaccine activists claimed, clearly drew on anti-vaccine tropes, and suggested a retreat from important public health precedents.

This Article explains the decision and the way in which it can undermine public health law. In short, the decision is problematic in two ways. First, it accepts claims that are untrue on their face. By ignoring the evidence and facts provided by public health authorities and experts, the opinion demonstrates further erosion of the high deference to expertise embodied …

Administrative Law: Major Questions About Presidentialism, Jodi L. Short

The Judges' Book

No abstract provided.

Table Of Contents

The Judges' Book

No abstract provided.

Civil Procedure: The Culture Of Forum Shopping In Civil Litigation, Scott Dodson

The Judges' Book

No abstract provided.

Civil Procedure: When Does State Law Affect Federal Jurisdiction?, Scott Dodson

The Judges' Book

No abstract provided.

Immigration Law: Decisionmaking In U.S. Immigration Courts, Karen Musalo

The Judges' Book

No abstract provided.

Governance & Guardrails: Emerging Technologies And Low-Wage Workers, Seema N. Patel

Faculty Scholarship

This Article examines an important, but undertheorized phenomenon at the intersection of technology and work: the rapidly increasing presence of artificial intelligence systems into low wage workplaces—and decidedly into the lives of low-wage workers themselves—and the resulting broader implications on work law and democracy. For decades, technology has enabled employers to increasingly exert control over workers; but for all their promise, emerging technologies like artificial intelligence also extend a new and potentially harmful level of concern for low-wage workers in particular. From algorithmic software that unilaterally determines workers’ schedules “on demand” and without notice; to constant and often surreptitious surveillance …

Water And The Western City, Dave Owen

Faculty Scholarship

No abstract provided.

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 …

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 …

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; …

The Complexities Of Consent To Personal Jurisdiction, Scott Dodson

Faculty Scholarship

Mallory v. Norfolk Southern Railway Co., decided in June 2023, held that consent remains a method of establishing personal jurisdiction independent of the “minimum contacts” test established by International Shoe Co. v. Washington. To many, the decision resolved ambiguity in personal jurisdiction doctrine and represented a straightforward way of establishing personal jurisdiction. But Mallory failed to consider the many complexities underlying consent. In this Article, I showcase those complexities and demonstrate that Mallory is just the tip of the iceberg: A host of questions, some fundamental to both consent theory and personal-jurisdiction doctrine, lurk beneath the surface. I argue that …

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 …

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 …

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 …

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 …

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). …

Working From 10 To 5, What A Way To Make A Livin’: The Sec’S Most Recent Amendments To Promote Corporate Governance And Curb Exploitative Hedge Fund Activism, Richard Young

UC Law Journal

This Note investigates the evolving regulatory landscape following the 2023 SEC amendments regarding beneficial ownership reporting. It begins by analyzing the rise of hedge fund activism and its influence on corporate governance strategies, addressing benefits, controversies, and criticisms associated with this form of shareholder activism. This Note then traces the historical development of the regulatory requirements for beneficial ownership reporting such the Williams Act and now nearly forty years later, the 2023 SEC amendments to Schedule 13(d) and Schedule 13(g). Lastly, this Note analyzes the ongoing limitations and challenges in balancing market transparency with market competition, gleaning into the future …

Educational Policy Committee Meeting – Open Session Book 11/21/2024, Uc Law Sf

2024 Board of Directors Agenda and Materials

No abstract provided.

Fallout And Fiduciary Duty, Russell Powell

UC Law Business Journal

No abstract provided.

When Debt Gets A Makeover, Taxes Follow, Doron Narotzki

UC Law Business Journal

The taxation of debt modifications is a complex and crucial area of tax law, significantly impacting both corporate finance and the broader economy. This article explores the complex legal and economic implications of modifying debt instruments, focusing on the key provisions of the Internal Revenue Code (IRC) and covers the foundational principle of “realization,” which governs the recognition of income, gain, or loss when a debt modification is deemed significant under Treasury Regulation § 1.1001-3. The article delves into the tax consequences for both debtors and creditors, highlighting the potential for Cancellation of Debt Income and the challenges of managing …

Pop Culture Depictions Of Diversity In Business – Mad Men, Super Store, And Barbie, Akshaya Kamalnath

UC Law Business Journal

We have come a long way from only having women in the secretarial pool (as depicted in M ad Men), to having women and racial minorities in the workforce (as depicted in Super Store), to a company that creates a fictional world where women hold all the top positions (Barbie). Both Mad Men and Super Store are American TV shows – Mad Men was made in the present- day to depict life in the world of advertising agencies in New York in the 60s. Super Store is a series on Netflix about the issues workers face in a big company …