Digital Commons Network^™

Electronic Form Over Substance: Esignature Laws Need Upgrades, Lothar Determann

UC Law Journal

Most professionals favor substance over form. Yet, with respect to form itself, more and more favor electronic form over substantive media and signatures. Companies, consumers, and governments increasingly use electronic communications, documents, and signatures instead of ink and paper. The COVID-19 pandemic has further accelerated an existing shift to digitization. Yet, many remain unsure about the legality or effectiveness of different forms of electronic signatures and find laws on the subject confusing.

Transactions, documents, and signatures are separate concepts. Transactions and other legally relevant actions, decisions, and declarations can be recorded in documents and effectuated with signatures. Documents and signatures …

The Doj’S Role In The Franchise No-Poach Problem, Molly Edgar

UC Law Journal

In 2016, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued a joint policy statement which notified human resource professionals of antitrust issues that may arise in the context of employee recruitment, hiring, and compensation. Among the various issues that the Agencies addressed was the use of no-poach agreements by employers. The Agencies stated that naked no-poach agreements, agreements between employers at different companies to refuse to solicit or hire one another’s employees, are per se illegal under federal antitrust law. Three years later, in a case involving a no-poach agreement, the DOJ filed a statement of …

The Legal Value Of Fiscal Sponsorship: A Proposal Of New Law, Emma Geering

UC Law Journal

With social conscientiousness as a core value, American society has utilized nonprofit organizations to motivate social change. But as resources are finite and expertise in the complex legal, operational, and organizational nature of charitable organizations is limited, startup or small and local nonprofit organizations are having a harder time getting off the ground. Fiscal sponsorship—a term of art used to describe the relationship between social entrepreneurs and a tax-exempt organization—provides a functional framework to charitable projects that cannot or choose to not obtain tax-exempt status. Fiscal sponsorship provides a business mechanism to advance the nonprofit sector, as it facilitates collaboration, …

How Does It Feel To Be A Solution?: How South Asian Migration From 1885 To 1923 Created A Modern South Asian “Other” Used To Promote Conservative Rhetoric, Ayushi Neogi

UC Law Constitutional Quarterly

This note seeks to understand the place of a South Asian American in a country that considers itself bi-racial. The note analyzes the racial ambiguity of the South Asian in two major historical contexts. First, it provides an overview of the legal history of South Asian migration, the first “wave” of which occurred from 1885 to 1923. It analyzes the various exclusionary laws (both state and federal) that set a framework for how to view and treat the common Indian migrant. It further looks at California and the Pacific North- west’s deliberate, xenophobic acts during this time period, such as …

The Demographics Of Death: An Early Look At Covid-19, Cultural And Racial Bias In America, Eddie Bernice Johnson, Lawrence J. Trautman

UC Law Constitutional Quarterly

During late 2019, reports emerged that a mysterious coronavirus was resulting in high contagion and many deaths in Wuhan, China. In just a few weeks, cases rose quickly in Seattle, spread to California, and the first in- stance of the virus appeared in New York (from Iran) on March 1, 2020. As the months pass, it is abundantly clear that less wealthy Americans have far fewer options amid the new normal of shelter-in-place orders, school closings, and shuttered businesses. For example, the poor and other populations may be genetically pre-disposed to heart disease and diabetic issues, but poverty also dictates …

Recapturing Democracy: Covid-19 And The 2020 Presidential Election, John Taschner

UC Law Constitutional Quarterly

America is in the business of selling and maintaining democracy around the world. Through aid, provision, humanitarian relief, guidance, and forcible action if need be, the United States stands for democracy. At the birth of the country, the biggest threat to the founding fathers was someone assuming the highest position of leadership in the country and, thereafter, becoming unwilling to transition power. In the aftermath of the 2020 Presidential Election, this exact worst-case-scenario from more than two hundred years had played out amidst numerous lawsuits and demands for recounted votes in order to have only the “legal” votes counted towards …

Foreword, Richelle Joy Gernan

UC Law Constitutional Quarterly

No abstract provided.

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Commercial Law Intersections, Giuliano G. Castellano, Andrea Tosato

UC Law Journal

Commercial law is not a single, monolithic entity. It has grown into a dense thicket of subject-specific branches that govern a broad range of transactions and corporate actions. When one of such dealings or activities falls concurrently within the purview of two or more of these commercial law branches—such as corporate law, intellectual property law, secured transactions law, conduct and prudential regulation—an overlap materializes. We refer to this legal phenomenon as a commercial law intersection (CLI).

CLIs are ubiquitous. Notable examples include traditional commercial transactions, such as bank loans secured by shares, supply chain financing, or patent cross-licensing agreements, as …

Damages For Noneconomic Harm In Intellectual Property Law, Thomas F. Cotter

UC Law Journal

This Article provides a comprehensive analysis of awards of “noneconomic” damages for reputational and emotional harm in intellectual property (IP) law, including trademarks, copyright and moral rights, the right of publicity, and patent law. The Article discusses, among other matters, the Second Circuit’s recent decision in Castillo v. G&M Realty L.P., affirming a $6.75 million award of statutory damages for the infringement of artists’ moral rights in graffiti art; the European Union’s Intellectual Property Rights Enforcement Directive and its 2016 Liffers decision, which appear to require member states to award, where warranted, noneconomic (“moral prejudice”) damages across the full range …

Transplanting Fair Use Across The Globe: A Case Study Testing The Credibility Of U.S. Opposition, Niva Elkin-Koren, Neil Weinstock Netanel

UC Law Journal

The fair use privilege of United States copyright law long stood virtually alone among national copyright laws in providing a flexible, open-ended copyright exception. Most countries’ copyright statutes set out a list of narrowly defined exceptions to copyright owners’ exclusive rights. By contract, U.S. fair use doctrine empowers courts to carve out an exception for an otherwise infringing use after weighing a set of equitable factors on a case-by-case basis.

In the face of rapid technological change in cultural production and distribution, however, the last couple decades have witnessed widespread interest in adopting fair use in other countries. Thus far, …

Not My Problem? Landlord Liability For Tenant-On-Tenant Harassment, Aric Short

UC Law Journal

Tenant-on-tenant harassment because of a victim’s race, gender, or other protected status, is a severe and increasingly widespread problem often targeting vulnerable tenants. The creation of a hostile housing environment violates the federal Fair Housing Act (FHA), and victims may recover from their abusers, whether they are landlords or fellow tenants. But plaintiffs in two recent FHA lawsuits sought recovery from their landlords for something different: their landlords’ failure to intervene in and stop harassment committed by other tenants. These suits raise novel and important questions about the scope of the FHA, but the two courts disagreed about how the …

Introduction: Students’ Solutions To A Super Wicked Problem, David Takacs

UC Law Journal

No abstract provided.

Climate Change Regulation, Preemption, And The Dormant Commerce Clause, Tyler Runsten

UC Law Journal

As climate change regulation from the federal level becomes increasingly unlikely, states and local governments emerge as the last stand against climate change in the United States. This tension ushers in questions of separation of powers and federalism, with which the courts have wrestled since the country’s founding. The doctrine of preemption is one of the federal government’s strongest tools to limit states’ authority to regulate climate change. Preemption challenges have been increasing lately and have largely succeeded under judicial deference to the executive branch. However, recent changes to the Supreme Court signal that the Court may be less willing …

All I Want For Christmas Is A Carbon Sink, Tori Timmons

UC Law Journal

Anthropogenic climate change is among the gravest problems humanity faces. Nonetheless, global greenhouse gas emissions are not slowing, and the complete elimination of greenhouse gas emissions is not currently foreseeable. American culture and industries rely on activities and technologies that overuse greenhouse-gas-emitting fuel. Despite ever-increasing awareness and concern, many Americans feel apathetic and discouraged regarding behavioral changes for the benefit of the environment, even those who acknowledge the existence and exigency of climate change. In order to make a real impact, and nullify any barriers to action, climate change-focused laws must encompass everyday behaviors. Enter the American Christmas tree market. …

Health Care Civil Rights Under Medicare For All, Valarie K. Blake

UC Law Journal

The passage of Medicare for All would go a long way toward curing the inequality that plagues our health care system along racial, sex, age, health status, disability, and socioeconomic lines. Yet, while laudably creating a universal right to access to health care, Medicare for All may inadvertently dampen civil rights protections that are necessary to ensure equality in health care delivery, an outcome its creators and supporters surely would not intend.

Federal money is typically requisite for civil rights enforcement. Title VI, Title IX, and the Age Discrimination Act of 1975 all apply to recipients of federal financial assistance. …

Contaminated Relationships In The Opioid Crisis, Elissa Philip Gentry, Benjamin J. Mcmichael

UC Law Journal

Unlike past public health crises, the opioid crisis arose from within the healthcare system itself. Entities within that system, particularly opioid manufacturers, may bear some liability in sparking and perpetuating the current crisis. Unsurprisingly, the allegations underlying the thousands of claims filed in connection with the opioid crisis differ substantially. However, almost all of those claims rely, to some degree, on the strength of the relationship between opioid manufacturers and the healthcare providers who prescribed their products. This Article argues that the underlying relationship is the heart of the crisis and that this problematic relationship is by no means a …

Anti-Gmo And Vaccine-Autism Public Policy Campaigns In The Court Of Public Opinion, Robert C. Bird

UC Law Journal

Science skepticism is on the rise worldwide, and it has a pernicious influence on science and science-based public policy. This Article explores two of the most controversial science-based public policy issues: whether genetically modified foods are inherently unsafe and whether vaccines cause autism spectrum disorder. After evaluating the scientific credibility and discursive power of these claims, this Article analyzes how changes in public opinion can shift public policy away from anti-scientific practices. Legal scholarship can play a substantial role because, if accessibly written, it has the potential to be timely, persuasive, and comprehensible by a broad audience. Other stakeholders also …

Nonmarket Criminal Justice Fees, Ariel Jurow Kleiman

UC Law Journal

The public finance literature tells us that user fees will introduce market-like efficiency to public good provision. Meanwhile, criminal justice scholars note that criminal justice fees have run amok, causing crippling debt, undermining reentry efforts, and raising civil rights and constitutional concerns. This Article reconciles these seemingly opposed perspectives, arguing that criminal justice fees have become harmful precisely because they deviate from the traditional market-like environment that the public finance literature envisions. This nonmarket structure occurs for two reasons. First, criminal justice agencies are monopolistic providers of mandatory services, and second, criminal defendants cannot or do not consider the fee …

Counting Carbon: Forward-Looking Analysis Of Decarbonization, Ryan Thomas Trahan

UC Law Environmental Journal

Policy analysis primarily looks backward to solve problems of individual and public choice. Analysts often seek to derive and draw marginal curves from existing data to extrapolate observed relationships into the future. Indeed, the White House Council on Environmental Quality recently issued a proposed rule that would, among other things, codify the concepts underlying these tools for environmental matters, i.e., requiring the considered effects of a proposed action to be “reasonably foreseeable” and meet a “reasonably close causal relationship.” That proposal expresses a perspective with a long tradition, yet it presents a curious circumstance. Although marginal and statistical regression tools …

Tobacco And The Small Screen: Why The Tvomb Should Restructure The Parental Guidelines, Courtney Leavitt

UC Law SF Communications and Entertainment Journal

This article summarizes the creation and workings of the TV Parental Guidelines and the Oversight Monitoring Board, potential First Amendment issues of a required rating system, and possible solutions to the problems of the current rating system. The TV Parental Guidelines and the Oversight Monitoring Board were created to fulfill requirements of the Telecommunications Act of 1996. The TV Parental Guidelines are meant to empower parents to control the content viewed by their children with useful ratings. However, the accuracy of ratings and understanding of the system are limited. Further, the complaint process is complex, with little authority to enforce …

Defunding Prosecutors And Reinvesting In Communities: The Case For Reducing The Power And Budgets Of Prosecutors To Help End Mass Incarceration, Udi Ofer

Hastings Journal of Crime and Punishment

No abstract provided.

Creative Differences: Indigenous Artists And The Law At 20th Century Nation-Building Exhibitions, Lucas Lixinski, Stephen Young

UC Law SF International Law Review

Indigenous peoples in major common law jurisdictions (Australia, Canada, New Zealand, and the United States) have had a fraught relationship with the state’s legal system. However, while denying Indigenous individuals and peoples the same rights as white settlers, each of these states used Indigenous art to create a distinctive national-state identity. We analyze four major exhibitions, one from each of these countries to de-naturalize legal institutions responsible for the oppression of Indigenous people. This agenda-setting, comparative legal analysis yields valuable insights for the regulation of the contemporary Indigenous art market, and to understand how culture makes legal personality.

Protecting Cultural Heritage By Recourse To International Environmental Law: Chinese Stances On Faultless State Liability, Riccardo Vecellio Segate

UC Law Environmental Journal

Several international policy documents define the environment as made of “natural heritage” and “cultural heritage” together, along the lines of concepts such as “biosphere” or “ecosystem” which have been introduced relatively recently to define the complexity of humanenvironment interactions. Nevertheless, distinguishing natural heritage from the cultural one helps analyse situations where damage inflicted to the former negatively impacts the latter. In fact, cultural heritage sits under siege worldwide due to polluting activities and environmental degradation, which are causing irreparable damage to—or even the disappearance of— valuable expressions of civilisations’ legacy. Most damages are transboundary, thereby calling into question bilateral forms …

Combating Fake News With “Reasonable Standards”, Tawanna D. Lee

UC Law SF Communications and Entertainment Journal

Fake news is an intractable concern around the globe, sowing division and distrust in institutions, and undermining election integrity. This Article analyzes the spectrum of private and public regulation of “fake news” from comparative law and normative perspectives. In the United States, combating fake news shares surprising bipartisan support in an ever-divided political landscape. While several proposals have emerged that would strip Internet media companies of the liability shield for third-party content, it is unlikely that they would survive the seemingly insurmountable First Amendment scrutiny. This Article argues for a different tact—an amendment to the Communications Decency Act that addresses …

A Post For Change: Social Media And The Unethical Dissemination Of Nonconsensual Pornography, Cecilia Grimaldi

UC Law SF Communications and Entertainment Journal

No abstract provided.

A Right Of Ethical Consideration For Non-Human Animals, Michael Ray Harris

UC Law Environmental Journal

No abstract provided.

A Forgotten History: How The Asian American Workforce Cultivated Monterey County’S Agricultural Industry, Despite National Anti-Asian Rhetoric, Dominique Marangoni-Simonsen

UC Law Environmental Journal

This paper analyzes the implementation of exclusionary citizenship laws against Chinese and Japanese immigrants from 1880 to 1940. It further analyzes the application of these exclusionary mechanisms to the Asian immigrant populations in Monterey County, California. It identifies how the agricultural industry in Monterey County by-passed these exclusion laws as a result of the favored labor force of Japanese immigrants. The paper compares the acceptance of Japanese laborers to the decimation of the Chinese fishing industry in the county, which caused the eradication of Chinese culture. Finally, the paper analyzes the retroactive effects of these laws to the current Feast …

The Special Purpose District Reconsidered: The Fifth Circuit’S Recent Declaration That The Edwards Aquifer Authority Is A Special Purpose District Under The Voting Rights Act, And The Tortured History That Led To That Decision, Christopher Brown

UC Law Environmental Journal

No abstract provided.

Criminalization Of Homies: Gang Policing Tactics And Community Fragmentation, Juan Flores

Hastings Journal of Crime and Punishment

While growing scholarship has been crucial in understanding gang policing’s nature and impacts, there is currently limited research focusing on how policing relies upon fragmenting communities and perpetuating divisions within them. Gang policing claims to respond to conflict and rivalries between “gangs,” but how does this policing produce and perpetuate these community divisions? This paper seeks to understand how gang policing tactics perpetuate divisions and fragment communities while simultaneously producing criminality. This study used a qualitative approach, interviewing eight participants in Berkeley, San Diego, and Los Angeles who are perceived by law enforcement as “gang members” but who self-identify instead …