Digital Commons Network^™

Trade Secrecy And Innovation In Forensic Technology, Eli Siems, Katherine J. Strandburg, Nicholas Vincent

UC Law Journal

Trade secrecy is a major barrier to public scrutiny of probabilistic software tools that are increasingly used at all stages of the criminal system, from policing and investigation through trial and sentencing. Such tools allow prosecutors to leverage imperfect forensic evidence, such as DNA mixtures, smudged fingerprints, and grainy video footage. Probabilistic software tools unavoidably rely on potentially contestable assumptions, parameters, and implementation choices. Judicially recognized trade secrecy in criminal cases impedes scrutiny of these tools by defendants and the public. Previous critics have focused on secrecy’s potential to undermine the integrity and fairness of the criminal justice system, invoking …

Identifying And Countering Fake News, Mark Verstraete, Jane R. Bambauer, Derek E. Bambauer

UC Law Journal

Fake news presents a complex regulatory challenge in the increasingly democratized and intermediated on-line information ecosystem. Inaccurate information is readily created by actors with varying goals, rapidly distributed by platforms motivated more by financial incentives than by journalistic norms or the public interest, and eagerly consumed by users who wish to reinforce existing beliefs. Yet even as awareness of the problem grew after the 2016 U.S. presidential election, the meaning of the term “fake news” has become increasingly disputed and diffused. This Article first addresses that definitional challenge, offering a useful taxonomy that classifies species of fake news based on …

Avatars And Derivative Works: Harmonizing The Interests Of Creators And Consumers, Reina Shinohara

UC Law Journal

As we spend more of our days online, we are seeing a shift in content moving towards a progressively simulated reality. The virtual worlds of video games and other online communities have become a norm for many, with an influx of creative content derived from those spaces being widely shared and enjoyed by millions across the country. As instances of works featuring virtual worlds and our virtual representations within those worlds become more frequent, it becomes imperative that there be a clear delineation on what protections govern those expressions within and concerning those virtual spaces. Can an avatar be copyrighted? …

Board Of Directors Quarterly Meeting - Open Session Packet 03/10/2022, Uc Hastings Board Of Directors

2022 Board of Directors Agenda and Materials

No abstract provided.

Educational Policy Committee Meeting – Open Session Packet 02/17/2022, Uc Hastings Board Of Directors

2022 Board of Directors Agenda and Materials

No abstract provided.

Finance Committee Meeting - Open Session Packet 02/17/2022, Uc Hastings Board Of Directors

2022 Board of Directors Agenda and Materials

No abstract provided.

Weaponizing Culture To Undermine International Women’S Rights, Lan Cao

UC Law Journal

The Universal Declaration of Human Rights (“UDHR”) remains an emblem of hope and change in a world filled with continuing human rights violations. Its promise, enshrined in 1948, is as relevant then as it is now—that the international community would no longer allow a state’s brutal treatment of its own citizens to go unchallenged under the mantle of “sovereignty.”

But the UDHR is being challenged by authoritarians and dictators who rightly see the UDHR as an international check on their tyranny. It is also being questioned by Western communitarians who ironically see the UDHR’s enshrinement of international human rights as …

Making A Constitutional “Son Of Sam” Law: Netflix’S Booming True Crime Business, Justin Burnworth

UC Law Constitutional Quarterly

No abstract provided.

Liberty And Democracy Through The Administrative State: A Critique Of The Roberts Court’S Political Theory, Blake Emerson

UC Law Journal

The values of liberty and democracy repeatedly arise in recent Supreme Court opinions on administrative law. The conservative Justices have argued that the power vested in government agencies threatens individual freedom and collective self-government. This Article critiques these Justices’ use of political theory. It shows that the Justices do not faithfully and even-handedly apply the complex tradition of American political thought on which they rely. They invoke several different and competing aspects of liberty and democracy to criticize the administrative state. But because the Justices do not disentangle the various aspects of these two values from one another, they draw …

Dispute Resolution Commercial Transactions Along The Belt And Road: Creating Fair And Consistent Judgments, Sara Zokaei

UC Law Journal

For over forty years, China has promulgated national policies of opening-up and cooperation with other nations. Over the past eight years, China has been expanding its efforts to uphold these policy goals via the Belt and Road Initiative, China’s global infrastructure project. With this increase in international economic activity and commercial transactions, China has recognized the need for judicial reform to better serve the legal needs of foreign parties. Given China’s preference for peaceful cooperation, arbitration, and mediation, reform was necessary to cater to the needs of foreign parties who prefer litigation.

In parallel with the Belt and Road Initiative, …

Foreword, Meron Wendwesen, Katrina Uyehara

UC Law Constitutional Quarterly

No abstract provided.

Nobody’S Business: A Novel Theory Of The Anonymous First Amendment, Jordan Wallace-Wolf

UC Law Constitutional Quarterly

Namelessness is a double-edged sword. It can be a way of avoiding prejudice and focusing attention on one’s ideas, but it can also be a license to defame and misinform. These points have been widely discussed. Still, the breadth of these discussions has left some of the depths unplumbed, because rarely is the question explicitly faced: what is the normative significance of namelessness itself, as opposed to its effects under different conditions? My answer is that anonymity is an evasion of responsibility for one’s conduct. Persons should ordinarily be held responsible for what they do, but in some cases, where …

Deepfake Reckoning: Adapting Modern First Amendment Doctrine To Protect Against The Threat Posed To Democracy, Alyssa Ivancevich

UC Law Constitutional Quarterly

No abstract provided.

A New Prescription For The Opioid Epidemic: 360- Degree Accountability For Pharmaceutical Companies And Their Executives, Rebecca A. Delfino

UC Law Journal

We can no longer ignore this—a national crisis resulting in almost one million American deaths, costing hundreds of millions of dollars, ravaging the health care system, and devastating state and local communities. This narrative describes the COVID-19 pandemic and something else: the epidemic of opioid addiction and abuse. In the last twenty years, the opioid epidemic claimed the lives of more than 700,000 people at the cost of more than 500 billion dollars to the economy. The COVID-19 pandemic has made the opioid epidemic worse, causing a staggering increase in opioid-related overdose deaths. Even now, on average, 140 people die …

Dismantling The Master’S House: Establishing A New Compelling Interest In Remedying Systemic Discrimination, Chris Chambers Goodman, Natalie Antounian

UC Law Journal

This Article proposes a new compelling interest to justify affirmative action policies. Litigation has been successful, to a point, in preserving affirmative action, but public support of the diversity and inclusion rationales for race-conscious policies is waning. Equity abhors a vacuum, and so this Article promotes a return to remedial justifications for affirmative action programs and policies. It begins with an overview of the strict scrutiny standard, providing background on what constitutes compelling government interests, and what meets the narrowly tailoring element. After exploring the Court’s dismantling of the societal discrimination justification for affirmative action programs, this Article makes the …

Taking Stock: Open Questions And Unfinished Business Under The Vawa Amendments To The Indian Civil Rights Act, Jordan Gross

UC Law Journal

The primary statutory tool for federal regulation of Tribal court criminal procedure is the Indian Civil Rights Act of 1968 (ICRA). ICRA replicated most of the procedural protections in the Bill of Rights applicable to the States, as then interpreted by the Supreme Court. ICRA also sets out procedures Tribes must extend to criminal defendants in their courts, caps their sentencing authority, and defines their criminal jurisdiction.

Some parts of Indian country are the most dangerous places in the United States today, particularly for indigenous women and girls. They are exposed to a higher level of personal violence than any …

Saving The Sinking Ship: How The United States Can Create An Effective Content Moderation Policy By Looking Abroad, Zhi Yang Tan

UC Law Journal

Each day, the world creates another 2.5 quintillion bytes of data, with most of it being accessible by the average person through the smartphone they carry in their pocket. That data may often take the form of informative new articles or funny cat videos, but also hidden within that sea of information is content designed for more malicious purposes. While much of the world, and especially the U.S., has historically taken a laissez-faire approach to moderating online content, such an approach is quickly becoming outdated and ineffective as more people are exposed to disinformation or hate speech online, which can …

Privacy In Wearables: Innovation, Regulation, Or Neither, Kenny Gutierrez

UC Law Science and Technology Journal

No abstract provided.

U.S. State-Based Wilderness Law: An Evaluation, Miranda Holeton, David Takacs

UC Law Environmental Journal

No abstract provided.

The Psychology Of Secret Settlements, Gilat Juli Bachar

UC Law Journal

The #MeToo movement called attention to the use of non-disclosure clauses in settlement agreements as a tool to silence victims of sexual wrongdoing by repeat offenders such as movie mogul Harvey Weinstein and Olympic gymnast doctor Larry Nassar. The exposure of such secret settlements prompted a fierce policy and scholarly debate on the legitimacy and desirability of NDAs. Though the risk of NDAs hindering accountability is hardly new, NDAs are now increasingly the subject of legislative action, in states ranging from California and New York to Nevada and Tennessee. But should all NDAs be banned or limited by sunshine-in- litigation …

For The Betterment Of All Mankind: Claiming The Benefits Of Outer Space Through Intellectual Property Rights, Maeve Dineen

UC Law Science and Technology Journal

No abstract provided.

Cop Tracing, Jonathan Abel

Faculty Scholarship

What happens to an officer’s old cases when that officer is exposed as corrupt? Often, the answer is nothing. This Article calls for “cop tracing”: an effort to identify and investigate the past cases handled by dishonest cops. The Article first describes the existing action and inaction with respect to such tracing. Next, it examines the logistical and legal barriers to cop tracing. Finally, the Article considers the implications of cop tracing’s absence. The failure to engage in cop tracing is symptomatic of the failure to see the misconduct of even a single bad officer in systemic terms.

How The U.S. Government Fails To Protect Migrant Women’S Reproductive Rights In Detention Centers, Kendall Kohlmeyer

UC Law SF Journal on Gender and Justice

No abstract provided.

Artificial Intelligence And Inventorship – Does The Patent Inventor Have To Be Human?, Mimi S. Afshar

UC Law Science and Technology Journal

No abstract provided.

The Realities Of Takings Litigation, Dave Owen

Faculty Scholarship

This Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field. That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an important role in the United States’ …

Drafting Agricultural Legislation, Jessica Vapnek

Faculty Scholarship

"Agricultural legislation” is an umbrella term that covers a broad range of topics, including food, veterinary matters, plant protection, seeds, forestry, fisheries, water, and land. Agricultural legislation also intersects with other discrete subject areas, including environment, health, and trade. Because of these interconnections the borderlines – where agriculture begins and these related topics end – are debatable. How different countries view agriculture varies significantly. In the developed world, agriculture is mostly a commercial enterprise, and “agricultural law” is considered largely to apply to the business of agriculture, including agricultural finance, supply chains, marketing, insurance (crop, drought, pest), real estate, intellectual …

Regulating Democratized Investing, Abraham Cable

Faculty Scholarship

Robinhood and its imitators activated millions of new investors. Perhaps we should applaud them for finally resurrecting the retail investor after a decades-long decline. There are, however, reasons for concern. Robinhood racked up record fines in the run-up to its IPO. Its users are young, inexperienced, and prone to speculating in risky investments. Given these concerns, this Article considers how to protect this new class of “ultra-retail investors” while also leaving regulatory breathing room for these new market participants. It concludes that many current regulatory approaches risk being ineffectual or stamping out ultra-retail investing altogether by targeting product features that …

Bankruptcy Process For Sale, Kenneth Ayotte, Jared Ellias

Faculty Scholarship

The lenders that fund Chapter 11 reorganizations exert significant influence over the bankruptcy process through the contract associated with the debtor-in-possession (DIP) loan. In this Article, we study a large sample of DIP loan contracts and document a trend: over the past three decades, DIP lenders have steadily increased their contractual control of Chapter 11. In fact, today’s DIP loan agreements routinely go so far as to dictate the very outcome of the restructuring process. When managers sell control over the bankruptcy case to a subset of the creditors in exchange for compensation, we call this transaction a “bankruptcy process …

The House Always Wins: Doctrine And Animus In California’S Covid-19 Prison Litigation, Hadar Aviram

Faculty Scholarship

No abstract provided.

The Death Of Law, Ugo Mattei

Faculty Scholarship

This is a talk about the decline and fall of constitutional law, an over-arching characteristic of the new millennium. I focus on the period from the end of the Cold War—once described as the end of history—to what I call the “Second Cold War” beginning in the second decade of this century and having escalated in the proxy war in Ukraine. The Second Cold War is also characterized by an aborted cooptation of China through the World Trade Organization (to tame China’s seemingly unstoppable ascension to global supremacy) as well as a state of per-manent emergency.