Law Commons^™

Clean Water Act Section 401: Balancing States’ Rights And The Nation’S Need For Energy Infrastructure, Deidre Duncan, Clare Ellis

UC Law Environmental Journal

No abstract provided.

Balancing A Watershed Approach To Stormwater Management, Sean Bothwell, Kaitlyn Kalua

UC Law Environmental Journal

No abstract provided.

Leading The Way In Sustainable Practices: How The Cannabis Cultivation Policy Is Rethinking Water Management In California, Joanna Hossack

UC Law Environmental Journal

No abstract provided.

The Shortcomings Of Regulating Pesticides Internationally And How Disadvantaged Communities Pay The Price, Alex Sauerwein

UC Law Environmental Journal

Glyphosate is a toxic pesticide heavily used in food production. As a result, glyphosate ends up in the air we breathe and the water we drink. The increasing spread and use of glyphosate have many negative impacts on public and environmental health. Researchers are finding links between the use of glyphosate and cancer, Parkinson disease, and lower IQ rates in humans. Researchers have also linked glyphosate to environmental harms, like decreased biodiversity and unintended killing of fish near farms. International law has attempted to limit the use of toxic chemicals through hard law principles like the Rotterdam Convention and soft …

The Power Side Of The Second Amendment Question: Limited, Enumerated Powers And The Continuing Battle Over The Legitimacy Of The Individual Right To Arms, Nicholas J. Johnson

UC Law Journal

Roughly a decade has passed since the Supreme Court’s decision in District of Columbia v. Heller and the battle over the basic legitimacy of the right to keep and bear arms continues. A significant segment of the academy, the Bar, and the judiciary remains skeptical about the constitutional bona fides of the individual right to arms. A primary source of that skepticism is the view pressed most forcefully by professional historians that the Second Amendment had nothing to do with individual self-defense and at best protects an “individual militia right” that has no practical application in modern America. This Article …

Embracing Global Warmth And Climate Resilience Through Green Chemistry Legislation, Oladele A. Ogunseitan

UC Law Environmental Journal

No abstract provided.

Precedent, Politics, Or Priorities: Are Courts Stepping Out Of Their Traditional Judicial Bounds When Addressing Climate Change?, Mary Haley Ousley

UC Law Environmental Journal

There is consensus in the scientific community that climate change is in fact occurring and is primarily driven by human activities. Despite this consensus, the executive branch under President Trump has engaged in scrapping environmental regulations and increasing fossil fuel consumption, while the legislative branch has refused to take any beneficial action. This leaves the judicial branch as the primary avenue for Americans seeking to force action on climate change.

This paper will focus on the judicial response toward climate change litigation. More specifically, it will analyze how some courts—and the litigants who bring their suits—are stepping outside of their …

Meritless Historical Arguments In Second Amendment Litigation, Mark Anthony Frassetto

UC Law Constitutional Quarterly

Since Heller Second Amendment litigation and scholarship has focused in large part on questions about the historical understanding of the Second Amendment. One area where this historical analysis has been especially pronounced is in litigation over the scope of the Second Amendment right outside of the home. Litigants, amici, and scholars fiercely debate the meaning of historical statutes, treatises, and cases, arguing about the scope of the right to carry arms outside of the home at the time of the Second and Fourteenth Amendments’ ratifications. Most law review articles attempt to address difficult or hotly contested legal issues. This is …

A Secret Weapon?: Applying Privacy Doctrine To The Second Amendment, Jody Lyneé Madeira

UC Law Constitutional Quarterly

In the past decade, “gun rights” advocates have attempted to strategically articulate a Second Amendment privacy interest in being free from interference from both governmental actors and private actors with ownership of, access to, or use of firearms. This essay explores why privacy is an appealing framework for these purposes, and how courts have responded to such claims thus far. Part I analyzes privacy as a legal and sociocultural construct, assesses claims that firearms ownership and use are stigmatized, and discusses how privacy doctrine can be a stigma management strategy. Part II examines three cases in which gun rights supporters …

Reciprocal Concealed Carry: The Constitutional Issues, William D. Araiza

UC Law Constitutional Quarterly

Legislation introduced in recent congressional sessions would enact some version of “concealed carry reciprocity” for firearms. This legislation would create a regime in which a holder of a concealed firearms carry permit issued by one state can carry a concealed weapon in any state that allows some form of concealed carry. Concealed carry reciprocity legislation raises a complex web of constitutional issues. After Part I of this Article introduces the concept of concealed carry reciprocity, as exemplified by a bill that the House passed in December, 2017, Parts II and III consider those constitutional issues. Part II considers the three …

The Second Amendment As A Fundamental Right, Timothy Zick

UC Law Constitutional Quarterly

The Second Amendment has been suffering from an inferiority complex. Litigants, scholars, and judges have complained that the right to keep and bear arms is not being afforded the respect and dignity befitting a fundamental constitutional right. They have asserted that on its own terms and relative to rights in the same general class, the Second Amendment is being disrespected, under-enforced, and even orphaned. Reviewing the available evidence, this Article generally rejects secondclass claims as either false or significantly overstated. Many of the claims are based on false premises, including the notion that the Supreme Court and lower courts immediately …

The Formalist Resistance To Unconstitutional Constitutional Amendments, Richard Albert, Malkhaz Nakashidze, Tarik Olcay

UC Law Journal

Many courts around the world have either asserted or exercised the power to invalidate a constitutional amendment. But we should not take the increasing prevalence of the doctrine of unconstitutional constitutional amendment as evidence of its appropriateness for all constitutional states. It is imperative that constitutional actors know that there is another answer to the question whether an amendment can be unconstitutional. We have three purposes in this Article, and we seek to fulfill each of them with reference to three jurisdictions in particular—France, Georgia, and Turkey—whose constitutions and attendant constitutional practices have expressly rejected the doctrine in a way …

An “Sdvcj Fix”—Paths Forward In Tribal Domestic Violence Jurisdiction, Joshua B. Gurney

UC Law Journal

Domestic violence has riddled the indigenous communities of the United States for decades. Within this problem lies another—non-Indians perpetrate crimes of domestic violence against Indian women at disproportionately high rates. Exacerbating this issue is the complicated web of criminal jurisdiction split between federal, state, and tribal governments. To ostensibly solve the problem, Congress enacted the Violence Against Women Reauthorization Act of 2013. The Act contained an important provision that returned criminal jurisdiction to tribes, called “Special Domestic Violence Criminal Jurisdiction.”

Special Domestic Violence Criminal Jurisdiction, by most accounts, has been a resounding success. But it suffers from critical limitations, namely, …

The Third Rail Of San Francisco Politics: Transportation, Race, And The Central Subway, Wendell Lin

UC Law Journal

In the backdrop of intense political division, San Francisco is proud to be a beacon of diversity and inclusion. But the “sanctuary city” has an appalling history of racism and continues to relegate marginalized communities with transportation infrastructure decisions that exacerbate racial segregation and economic inequality. This Note exposes the racial bias underlying decisions with respect to transportation infrastructure, concluding that grassroots organizing, transparent decision making processes, and enhanced government accountability are three necessary means to protect the public’s interest.

Corpus Evidence Illuminates The Meaning Of Bear Arms, Dennis Baron

UC Law Constitutional Quarterly

In his opinion in District of Columbia v. Heller (2008), the late Justice Antonin Scalia insisted that the phrase “bear arms” did not refer to military contexts in the founding era. An examination of corpus data not available in 2008 clearly shows that founding-era sources almost always use “bear arms“ in an unambiguously military sense. This suggests that the plain, ordinary, natural, and original meaning of bear arms in the eighteenth century was ‘carry weapons in war,’ or in other forms of military or quasi-military action, not in hunting or individual self-defense. Corpus evidence shows as well that the phrases …

A Different Constitutionality For Gun Regulation, Lindsay Schakenbach Regele

UC Law Constitutional Quarterly

District of Columbia v. Heller hinged on the Second Amendment, defining for the first time an individual’s right to own a firearm unconnected with militia use, so long as the firearm is in “common use.” This essay argues that because the government determined which firearms were in “common use” throughout the nation’s early history, the Second Amendment allows regulating the types of weapons available to civilians, and their usage. It uses evidence from Congress, the War Department, and private arms manufacturers to examine the role of the federal government in developing and shaping the firearms industry from the nation’s founding …

A Triggered Nation: An Argument For Extreme Risk Protection Orders, Caroline Shen

UC Law Constitutional Quarterly

In recent years, the U.S. has experienced an unprecedented number of mass shootings and other gun-related injuries and deaths. In spite of all of this gun violence, there is still an unyielding resistance against the passage of common sense gun laws. Many laws restricting large capacity magazines and gun silencers, for example, are continuously shot down by federal and state courts, and the National Rifles Association and its constituents in Congress continue to hitch their arguments to the decision of the Supreme Court in District of Columbia v. Heller.

In this time of political gridlock, perhaps the best solution is …

Prefatory Matter

UC Law Environmental Journal

No abstract provided.

The Armed Society And Its Friends: A Reckoning, Charles W. Collier

UC Law Journal

This Article provides a selective introduction to some of the main social, cultural, historical, and intellectual issues surrounding gun violence and the desultory policy “debates” over gun control in America.

Unregulated gun violence, unrestricted gun violence, unlimited gun violence: these are the grave “new normal” (a term coined in financial economics) on the otherwise pastoral landscape of America. Sociologically speaking, this level of gun violence is no longer considered deviant, such that “special sanctions” would be imposed to prevent it.

Gun violence and the lack of gun control have also been described as “tragic”—a cultural tragedy—and so they are, though …

Disclosure As Delaware’S New Frontier, Reza Dibadj

UC Law Journal

No abstract provided.

Genetic Privacy In The “Big Biology” Era: The “Autonomous” Human Subject, Marilyn Cech

UC Law Journal

What do the Golden State Killer, the Havasupai Tribe, and Henrietta Lacks have in common? None of these individuals gave informed consent for the particular research uses of their genetic material. Biotechnological advancements have made what was previously unimaginable—just decades or even years ago—a common reality. Unfortunately, the law evolves at a much slower rate than science. Thus, it may take a radical philosophical shift to make way for new legal frameworks that can provide adequate protections that keep up with scientific progress and withstand the test of time. Currently, a person’s “bio-unique data,” namely a person’s biological material and …

The Enduring Virtues Of Deferential Federalism: The Federal Government’S Proper Role In Prosecuting Law Enforcement Officers For Civil Rights Offenses, Adam Harris Kurland

UC Law Journal

No abstract provided.

The Street View Of Property, Vanessa Casado Perez

UC Law Journal

Parking on public streets is scarce. The current allocation system for parking spots based on the rule of capture coupled with low parking fees creates a tragedy of the commons scenario. The misallocation of parking has consequences for commerce, for access to public spaces, and for pollution and congestion. Municipalities have not widely adopted the solution that economists propose to solve this scarcity problem: increase the price. Politics aside, the reluctance of municipalities to do so may be explained by the unique nature of public property as reflected in well-rooted legal and societal constraints. This unique nature helps explain, for …

Promise, Peril, And Procedure: The Price-Anderson Nuclear Liability Act, Jeffrey C. Dobbins

UC Law Journal

No abstract provided.

Explaining Choice-Of-Entity Decisions By Silicon Valley Start-Ups, Gregg Polsky

UC Law Journal

Perhaps the most fundamental role of a business lawyer is to recommend the optimal entity choice for nascent business enterprises. Nevertheless, even in 2018, the choice-of-entity analysis remains highly muddled. Most business lawyers across the United States consistently recommend flow-through entities, such as limited liability companies and S corporations, to their clients. In contrast, a discrete group of highly sophisticated business lawyers, those who advise start-ups in Silicon Valley and other hotbeds of start-up activity, prefer C corporations.

Prior commentary has described and tried to explain this paradox without finding an adequate explanation. These commentators have noted a host of …

A Tribute To Professor Jonathan Rohr, Melanie Leslie

UC Law Journal

No abstract provided.

Blockchain-Based Token Sales, Initial Coin Offerings, And The Democratization Of Public Capital Markets, Jonathan Rohr, Aaron Wright

UC Law Journal

Best known for their role in the creation of cryptocurrencies like bitcoin, blockchains are revolutionizing the way technology entrepreneurs finance their business enterprises. In 2017 alone, tech entrepreneurs raised over $6 billion through the sale of blockchain-based digital tokens, with some sales lasting mere seconds before selling out. In a token sale, also referred to as an “initial coin offering” or “ICO,” organizers of a project sell digital tokens to members of the public to finance the development of new technological platforms and services. After the initial sale, cryptocurrency exchanges scattered across the globe list tokens for trading and facilitate …

The Emergence Of The Environmental Impact Assessment Duty As A Global Legal Norm And General Principle Of Law, Tseming Yang

UC Law Journal

More than half a century ago, Rudolf Schlesinger announced a global survey of legal principles in the pages of the American Journal of International Law. The project’s objective was the identification of a “common core” of legal norms among the family of nations and the ultimate goal the production of something akin to a global restatement of law. Such an endeavor was to yield global principles of law, ultimately giving substance to the General Principles of Law provision under Article 38 of the Statute of the International Court of Justice. In spite of the initial enthusiasm surrounding the project, its …

Harvey Of Hollywood: The Face That Launched A Thousand Stories, Sara Khorasani

UC Law SF Communications and Entertainment Journal

In the fall of 2017, the world was shaken by allegations of sexual misconduct against one of Hollywood’s high-powered movie moguls. The Harvey Weinstein scandal exposed countless accounts of sexual harassment and abuse, along with the settlement agreements that had kept them covered for decades. Since then, social movements have helped knock Harvey off his Hollywood throne and shed light upon a major concern plaguing the entertainment industry. This paper seeks to address how to effectively change an industry that has long bred a systemic culture of sexual harassment and discrimination. Under the accepted norms of Hollywood, victims of sexual …

Mixed Messages: How The Free Press Has A Responsibility To We The People At The Marketplace Of Ideas, Addison O’Donnell

UC Law SF Communications and Entertainment Journal

The Free Press makes possible a fair democracy. It exerts influence on our communities and our consciences, principally in the form of reporting facts through its account of events, endorsing certain viewpoints through editorials, and ultimately producing the “first rough draft of history.” How the public responds to the Free Press speaks to the historic and continued expectation that many different voices should present divergent messages and allow the people to decide which message is the truth. Risks taken by the Free Press in the name of truth enable the theory of our Constitution to endure by facilitating the unbridled …