Digital Commons Network^™

The Intrusive State: Restrictions On Gender-Affirming Healthcare For Minors, Exceptions To The Doctrine Of Parental Consent, And Reliance On Science And Medical Expertise, Lois A. Weithorn

Faculty Scholarship

The provision of gender-affirming medical care to transgender or gender diverse (“TGD”) youth is currently the subject of substantial controversy despite an overwhelming consensus in the healthcare community as to the safety and potential benefits of recommended treatments. Much of the debate is fueled by misinformation and inaccurate characterization of research and practice. Against this backdrop, twenty-three states enacted restrictions or complete prohibitions on access to gender-affirming medical care for adolescents between 2021 and the time of this writing in early 2024. The policies typically place healthcare practitioners who provide such services at risk of license revocation. Some statutes create …

Race And Regulatory Equity, Ming Hsu Chen

Faculty Scholarship

This article contemplates the proper role of regulatory agencies in implementing equity orders. More specifically, what is their role with regard to higher education admissions, in the post-SFFA v. Harvard landscape of racial equity?

Disability, Race, And Health Beyond The Carceral State, Benjamin Barsky, Craig Konnoth, Michael A. Stein

Faculty Scholarship

No abstract provided.

Racial Reckoning And The Police-Free Schools Movement, Thalia Gonzalez, Rebecca Epstein

Faculty Scholarship

Across the country, students of color face daily threats of arrest, exclusion, and violence at the hands of school police officers. Whether deemed threatening, defiant, or hypersexualized, Black students, in particular, pay a heavy price to access their right to free public education. Despite victories in dismantling educational carcerality since the mid-2000s, efforts to formally remove police from public schools has been limited. However, during the 2020 racial reckonings, political opportunity catalyzed social movement campaigns, resulting in the passage of sixty-nine police-free policies. This represented an inflection point for civil rights, education justice, and police abolition scholars and activists. This …

Reproducing Inequality: Racial Capitalism And The Cost Of Public Education, Thalia Gonzalez, Paige Joki

Faculty Scholarship

American democracy is marked by an unwavering deployment of racialized economic modalities of fines, fees, and debt aimed at scaffolding hierarchies of white power and prescribing Black people as commodities, not human beings. Over the last two decades, an expanding praxis in the economic justice field has emerged, opposing and disrupting racialized economic logics within a national anti-fine, fee and cost movement. From scholarly discourse to legal interventions and reforms at city- and county-levels, the movement has sought to target interlocking material and ideological forces that comprise racial capitalist geographies across many criminal and civil systems. Despite this significant work, …

Psychic Income & Democratized Investing, Abraham J.B. Cable

Faculty Scholarship

No abstract provided.

Ai & Antitrust: The Algorithm Made Me Do It, Robin Feldman, Caroline Yuen

Faculty Scholarship

As the dawn of artificial intelligence (“AI”) rises rapidly, competition authorities should contemplate the potential for hazy days ahead. Undoubtedly, AI’s already ubiquitous presence offers exciting possibilities, from enhancing efficiency, to leveling the playing field for non-native speakers,to enabling scientific discovery.Despite these breathtaking advancements, however, recent data from the Pew Research Center reveal that only 15% of adults surveyed were “more excited than concerned about the increasing use of AI in daily life,” with 46% expressing “an equal mix of concern and excitement.”

Policymakers also manifest concerns about AI, exemplified by the extent to which government actors are racing to …

Hierarchies Of Discrimination In Baby Making? A Response To Professor Carroll, Radhika Rao

Faculty Scholarship

No abstract provided.

Toward A Taxonomy Of Freedom Of Movement Claims: Identifying Rights-Based Pathways For Today’S Refugees Beyond The 1951 Refugee Convention, Moria Paz

Faculty Scholarship

This Article discusses the current migratory crisis as one instance of a conceptual mismatch in human rights between formal law and the tools that courts and other quasi-judicial bodies actually utilize in adjudication. While the doctrine centers around individual right-holders, enforcement bodies provide a remedy only when there is a state duty-holder. Human rights scholarship regarding refugees focuses on the right to freedom of movement. However, this right frequently offers little benefit to these individuals adrift at sea or wandering in the desert.

An alternative framing might ultimately be more effective before human rights courts and other quasi-judicial bodies. This …

Standing And Snitches, Emily Strauss

Faculty Scholarship

No abstract provided.

Mutiny For A Bounty, Emily Strauss, Joseph A. Grundfest

Faculty Scholarship

Experience teaches that attorneys may violate duties of confidentiality and trust to pursue personal gain. Multiple insider trading, embezzlement, and fraud prosecutions prove the point. The Dodd-Frank Act of 2010 establishes a bounty regime whereby certain whistleblowers are eligible for awards of 10%–30% of Securities and Exchange Commission (“SEC”) enforcement recoveries exceeding $1 million. Since its inception, this program has paid at least 207 whistleblowers more than $1 billion. The Commission’s bounty program thus may be a meaningful inducement to breach privilege.

The SEC asserts that its whistleblower authority preempts state law and that it can accept attorney–client privileged information. …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Litigating The Future Of Youth’S Access To Gender-Affirming Care, Sophia Ureta-Fulan

UC Law Constitutional Quarterly

Youth should challenge limitations and prohibitions to their pursuit of gender-affirming care under the Americans with Disabilities Act (ADA) and the Equal Protection Clause of the Fourteenth Amendment (EPC). Executive orders in several states have severely limited or prohibited youths’ ability to pursue gender-affirming care. These legal schemes and policies restrict access to gender-affirming care in violation of the ADA and the EPC. This paper discusses the need for gender-affirming care, the policy landscape in the United States restricting youths’ access to gender-affirming, evaluates arguments to expand the ADA to include coverage of gender dysphoria, and explores potential EPC challenges …

Foreword, Edward M. Chen

The Judges' Book

No abstract provided.

First Amendment Disequilibrium, Christina Koningisor, Lyrissa Lidsky

Faculty Scholarship

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers …

The Legal Metaverse And Comparative Taxonomy: A Reappraisal, Ugo Mattei

Faculty Scholarship

The present Article revisits my “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems”—published in this very Journal a quarter century ago—which acknowledged the ideological nature of the law versus politics distinction and posited taxonomy as a means for understanding law. The original article classified law into professional law, political law, and traditional law, and heralded the tentative and dynamic natures of such classification. The two purposes of the present Article are to (i) reflect on legal transformations that have since occurred as reactions to global geopolitical, technological, and economic changes, and (ii) interrogate whether epistemological assumptions …

Internet Drug Prohibition And The Opioid Overdose Crisis, Benjamin Barsky

Faculty Scholarship

The Ryan Haight Online Pharmacy Consumer Protection Act (Ryan Haight Act) prohibits controlled substance tele-prescribing when it occurs without a preliminary in-person medical evaluation. This Article details the Ryan Haight Act’s consequences for the practice of telemedicine in general and opioid addiction treatment in particular. In doing so, it builds on literature exploring the tension between the federal criminal regulation of controlled substance prescribing and the management of large-scale public health crises, particularly the opioid overdose crisis.

By restricting the tele-prescription of certain controlled substances used for opioid addiction treatment, the Ryan Haight Act limits access to care for a …

Dance Of The Biologics, Robin Feldman, Gideon Schor

Faculty Scholarship

From COVID-19 vaccines to cancer treatments, biologic medicines are gaining importance in the U.S. health care system. Their high price tags, however, make these medications difficult for many Americans to afford. The Biosimilars Act, enacted in 2010, aimed to reduce costs and increase access to biologic medications by encouraging follow-on competition. The legislative effort followed in the footsteps of its predecessor, the Hatch-Waxman Act of 1984.

Although the Hatch-Waxman system succeeded in creating a landscape of more affordable and widely used generic drugs, the Biosimilars Act has failed to live up to its promise. Biologic drugs in the United States …

Making Social Security Progressive, Manoj Viswanathan

Faculty Scholarship

Social Security is funded by a regressive tax in which wages below the wage cap ($160,200 in 2023) are taxed at a flat rate but wages above the cap are taxed at zero. To address this normative shortcoming and make Social Security progressive, this Piece proposes eliminating the wage cap and using the resulting additional revenue to fund a zero-rate Social Security tax bracket analogous to the standard deduction of the federal income tax. IRS data show that these changes could fund an exemption of at least $10,000, thereby saving low-wage taxpayers approximately $1,200. By altering only the distribution of …

Mass Surveillance As Racialized Control, Prithika Balakrishnan

Faculty Scholarship

This Article examines how the expanded use of pretrial GPS surveillance is radically changing the presumption of innocence by implicating punitive measures absent constitutional protections and amplifying the racial disparities in our criminal justice system. Largely viewed as a substitution for physical detention and therefore a less onerous intrusion on a defendant’s liberty, pretrial GPS surveillance erodes fundamental liberties under the guise of criminal justice regulation. These highly racialized but invisible repercussions include harms to physical and psychological health, freedom of movement, privacy, and future economic self-determination. I argue that, in light of these substantial harms, courts must examine how …

Editor-In-Chief’S Forward, Zoë Grimaldi

UC Law Constitutional Quarterly

No abstract provided.

Politicians The Founders Warned You About, Neil Fulton

UC Law Constitutional Quarterly

Many articles have explored the Founders’ intentions regarding the constitutional text. Much less attention has focused on the Founders’ ideas regarding the traits needed of the leaders in a constitutional republic. The Constitution focuses on governing structures, many of which relate to the electoral process. The Constitution does not spell out the ideal traits of the leaders elected pursuant to those processes. Nonetheless, the Founders possessed clear views about the virtues and qualifications that ideal political leaders required. Indeed, the Founders issued warnings about certain archetypal political figures who, because of their flagrant disregard of the ideal virtues and qualifications, …

Domestic Supply (A Feminist Proposal), Jennifer Hendricks

UC Law Constitutional Quarterly

No abstract provided.

Unprecedented: Asian Americans, Harvard, The University Of North Carolina, And The Supreme Court’S Striking Down Of Affirmative Action, Harvey Gee

UC Law Constitutional Quarterly

In response to the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al. (“SFFA v. Harvard”),1 author Harvey Gee urges his fellow Asian Americans––the star plaintiffs in the case and depicted as the main beneficiaries of its holdings–– to fight back to preserve affirmative action. Part I explores how the Court’s approach to affirmative action changed from the emergence of the Civil Rights Movement through many of the pivotal affirmative action cases prior to the 2010s. Part II then seeks …

The Purpose And Practice Of Precedent: What The Decade Long Debate Over Stare Decisis Teaches Us About The New Roberts Court, Russell A. Miller

UC Law Constitutional Quarterly

The Supreme Court’s tectonic decision in Dobbs v. Jackson Women’s Health upended the Doctrine of Substantive Due Process by radically reinterpreting the doctrine of stare decisis. The Court’s established practice regarding stare decisis should have operated to preserve the fifty-year-old abortion jurisprudence. But we should have seen this change coming. Although there has been an intense and involved debate over the purpose and practice of precedent for generations, that debate shifted at the beginning of 2018. Four approaches to stare decisis emerged along a continuum, from complete abandonment of the doctrine and incremental erosion to modernized adherence to precedent. This …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Editor-In-Chief’S Forward, Zoë Grimaldi

UC Law Constitutional Quarterly

No abstract provided.

Procedural Pluralism: A Model For Enforcing Internal Administrative Law, Daniel Epstein

UC Law Constitutional Quarterly

Much of our federal administrative law relies upon supposedly mandatory procedures that agencies often ignore. So, can the administrative state achieve legitimacy if it is bound by laws that it rarely, if ever, complies with? New data shows that agencies simply ignore administrative procedures without recourse because compliance ultimately depends on who holds power in the administrative state––not congressionally delegated rules or procedures imposed by the President. This article refutes the prevailing assumption that, as the sole powerholder of the entire executive department, the President is responsible for the current state of administrative non-compliance and underenforcement because the President decides …

How European Human Rights Law Will Reshape U.S. Business, Rachel Chambers, David Birchall

UC Law Business Journal

In recent years several European states have enacted human rights due diligence laws, culminating in the imminent EU-wide Corporate Sustainability Due Diligence Directive.

This article provides a comprehensive analysis of these laws and explores their potential impact on U.S. businesses. Human rights due diligence emerges from the United Nations Guiding Principles on Business and Human Rights (2011) and was originally conceived as a voluntary means by which corporations could demonstrate that they proactively monitor and manage potential human rights abuses within their corporate group and supply chains. Since 2017, European states have begun enacting binding human rights due diligence laws. …

The Professional Employer Organization Regulatory Regime, Ursula Ramsey

UC Law Business Journal

No abstract provided.