Law Commons^™

Revenge In Modern Times: The Necessity Of A Federal Law Criminalizing Revenge Porn, Katlyn M. Brady

UC Law SF Journal on Gender and Justice

Revenge porn is a growing phenomenon where the victim is constantly re-victimized as the intimate photographs are shared across the Internet. Once a picture has been uploaded victims have no control over its distribution. The current patchwork of state criminal laws is often inadequate because the victim cannot utilize them to force websites to remove the photographs, the laws are often inadequate, and often police or legislatures fail to recognize that revenge porn is a type of sexual exploitation. States are only now beginning to take the complaints seriously. This paper sets out to define revenge porn, explain why it …

Legal Censure Of Unconventional Expressions Of Love And Sexuality; Finding A Place In The Law For Bdsm, Anne Onoma

UC Law SF Journal on Gender and Justice

The laws against assault and battery do not provide an exception for consensual BDSM. Consequently, a BDSM practitioner may be charged with criminally assaulting or battering a sexual partner despite having engaged in an activity that was completely consensual and not harmful in any meaningful way. Consent is the legal difference between sex and rape, and so consent should also be the difference between BDSM and criminal assault or battery. However, courts remain unwilling to even consider a defense of consent in assault and battery cases that include alleged BDSM activities. This note will explore the multiple ways in which …

The Principal Theory, Jennifer Twist, Merienne Star Blake

UC Law SF Journal on Gender and Justice

Prison inmates Jennifer Twist and Merienne Star Blake are just two of hundreds of women who are currently serving life sentences on a “Principal Theory.” This theory contains and entails that being at the scene or near the scene of the crime indicates a guilty demeanor as much as the person who actually committed the crime. The theory does not account for mitigating factors of trauma that many women face. Twist and Blake stand up as warriors for this cause and give a voice to the many woman serving life without parole on the basis of the Principal Theory.

The Constitutionality And Future Of Sex Reassignment Surgery In United States Prisons, Brooke Acevedo

UC Law SF Journal on Gender and Justice

This note examines how federal and state prisons do not currently have a policy for prison inmates living with gender dysphoria to receive their sex-reassignment surgery while incarcerated. Transgendered inmates face various legal, social, and medical challenges in the prison system. These challenges are only amplified when they are denied access to sexreassignment surgery. After various independent doctors have determined the sex-reassignment surgery is a medical necessity, denying inmates the surgery is a violation of their constitutional rights. California has developed a policy to determine when an inmate can receive their surgery, the rest of the country needs to model …

Medical Marijuana And Child Custody: The Need To Protect Patients And Their Families From Discrimination, Alice Kwak

UC Law SF Journal on Gender and Justice

This note addresses parents who stand to lose child custody due to discrimination against the parent’s status as a medical marijuana patient or provider for their children. Parents may be forced to choose between marijuana to alleviate health problems and the retention of custody of their children; in some cases, parents are being forced to choose between living with chronic, debilitating pain and potentially facing a child custody battle or loss of a child to the foster care system.

Agent Narc Is Not Your Client: Reflections On The Proper Understanding Of The Relationship Between Prosecutors And Investigating Agencies, Carrie Leonetti

UC Law Constitutional Quarterly

Assistant United States Attorneys increasingly conceive federal lawenforcement agents as their "clients" in criminal prosecutions. As both a descriptive and normative matter, this cannot be right. As a descriptive matter, official interpretations by the Department of Justice, the bench, the bar, and academic commentators almost always reject this "client" conception. It is inconsistent with the conception of prosecutorial obligations espoused by Brady v. Maryland, the American Bar Association model rules of ethics, federal statutes, and evidentiary law. As a normative matter, it could have serious implications for the law of attorney malpractice, prosecutorial immunity, the disclosure of favorable evidence to …

Family Responsibilities Discrimination In The Public Sector: Maximizing The Use Of Section 1983 To Enforce Constitutional Rights, Stephanie Dominguez

UC Law Constitutional Quarterly

Family responsibilities discrimination ("FRD") claims have become a far more prevalent issue in employment cases. FRD is a workplace discrimination based on an employee's actual or perceived responsibility to care for a family member, including pregnancy discrimination. Although some states and local jurisdictions have passed legislation that specifically prohibits FRD in the workplace, no federal statute expressly prohibits FRD. This Note focuses on how state and local government employees who face FRD can use federal employment statutes such as 42 U.S.C. section 1983 ("Section 1983") to enforce their constitutional due process and equal protection rights. Part I of this Note …

Constitutional Protection For Future Generations From Climate Change, Ylan Nguyen

UC Law Constitutional Quarterly

This Note offers a comprehensive look at the constitutional rights of future generations with respect to climate change. On August 12, 2015, Our Children's Trust filed a lawsuit against the federal government asserting that the government has failed to protect present and future generations from a human caused climate catastrophe. Inspired by Our Children's Trust's lawsuit, this Note seeks to establish that future generations are entitled to constitutional protection from climate change.

This Note consists of five sections aimed at showing that future generations are entitled constitutional protection from climate change and seeks to establish that the federal government has …

Constitutional Implications On Block Pricing In The California Water Market, Deeba Fahami

UC Law Constitutional Quarterly

Due to the severity of the recent drought, those residing in California have realized the devastating effects of climate change. As California continues to experience amplified weather conditions and diminished water supply, the state must adapt to drought conditions and mitigate the impacts of droughts. In order to do so, municipal water pricing mechanisms that send price signals to consumers to conserve water should be enforced to ensure the longevity of California's water supply. In particular, increasing block-pricing structures are a favorable market-based solution that disincentivizes heavy water consumption while allowing essential water use to remain affordable.

The California Constitution …

An Offensive Mark On Offensive Lines: The Question Of Violating The First Amendment Through The Cancellation Of The Washington Redskins' Trademark, Gabriela M. Kirkland

UC Law Constitutional Quarterly

There is a contentious debate about whether it is the government's place to determine whether offensive trademarks should receive legal protection. The Washington Redskins have been embroiled in a legal battle to protect the trademark for their team name. Currently, the cancellation of the Washington Redskins' trademark will not go into effect until the appeals process has been exhausted. The United States Supreme Court's decision on this issue will determine whether trademark owners will have the freedom to choose names without fear of losing legal protections. This Note will argue that though the Washington Redskins' may be considered an offensive …

Johnson V. United States: The Impact On Texas' Habitual Offender Statute, Emily Frances Lynch

UC Law Constitutional Quarterly

In 2015, the Supreme Court struck down the residual clause of a major federal "habitual offender" statute in Johnson v. United States. The Court determined that combining the ambiguously worded "residual clause" with a pure "categorical approach" for interpreting qualifying crimes violated the notice provision of the Due Process Clause. Additionally, the Court identified an inability to create a clear and consistent standard of application for applying the residual clause as a second independent ground for holding the residual clause unconstitutional. Although the Court's holding specifically applied to a federal sentencing enhancement scheme, the holding is undoubtedly applicable to state …

#Ncaa Vs. Student Athletes: An Empirical Analysis Of Ncaa Social Media Policies, Elizabeth M. Heintzelman

UC Law SF Communications and Entertainment Journal

This article argues that the NCAA and its universities should not have any form of social media policy as it creates First and Fourth Amendment violations, as well as a liability for both the NCAA and its member schools. A social media policy should not limit constitutional rights, but rather any policy should educate the youth about important issues such as cyber-bullying, versus limiting constitutional rights. This article will focus on several issues: 1) whether the relationship between the NCAA and its student athletes constitutes an employer-employee relationship; 2) an evaluation of the social media policies concerning private employers and …

Can I Play Too? Transgender Student Athletes’ Inclusion In “Because Of Sex”, Paul Jones

UC Law SF Communications and Entertainment Journal

This article seeks to explore what remedies may be available to transgender student athletes in today's changing legal field. The law is scant as to whether transgender student athletes must be allowed to play on the sex-segregated teams which correspond with their gender identity. New legislation may not be needed. Title VII and Title IX may offer protections for transgender student athletes. The legislative and judicial tools already exist.

Several federal courts have included gender identity under Title VII, yet Title VII currently only protects people who are considered to be employees. There is now a movement across college campuses …

Latinos And The Internal Revenue Code: A Tax Policy Primer For The New Administration, Leo P. Martinez

Faculty Scholarship

No abstract provided.

Silver Lake, Matthew J. Brown

UC Law Environmental Journal

No abstract provided.

How To Assess The Real World Application Of A Capital Sentencing Statute: A Response To Professor Flanders’S Comment, John Mills

Faculty Scholarship

In assessing the constitutionality of a capital sentencing regime, the raw number of aggravating factors is irrelevant. What matters is their scope. To pass constitutional muster, aggravating factors (or the equivalent) must narrow the scope of death eligibility to the worst-of-the-worst. Professor Chad Flanders wants courts to ignore empirical assessments of the scope of aggravating circumstances and uses an imagined State of Alpha as his jumping off point. This response to Prof. Flanders makes the case for looking at the actual operation of a law, not just its reach in the abstract. This response focuses on Arizona’s capital sentencing regime …

The Elephant In The Room: What Is A Nonroutine Border Search, Anyway: Digital Device Searches Post-Riley, Eunice Park

UC Law Constitutional Quarterly

Since the Supreme Court handed down Riley v. California in 2014, we have been assured that if we are pulled over for speeding, an officer may not search our cell phone without a warrant. Another potential privacy peril, however, continues to loom: The international border. As the law currently stands, law enforcement agents may search our electronic devices, including cell phones and laptops, without any particularized suspicion, as we attempt to return into the United States from our trip abroad. Is this consistent with Riley? With the Fourth Amendment?

The wide latitude courts have given government agents to conduct border …

The Evolution Of American Discovery In Light Of Constitutional Challenges: The Role Of The 2015 Rule Amendments To The Federal Rules Of Civil Procedure, Tom Lin

UC Law Constitutional Quarterly

On December 1, 2015, the amendment package that revised Federal Rules of Civil Procedures, Rules 1, 4, 16, 26, 30, 31, 33, 34, and 37, went into effect. This Note offers a first look at the new amendments to the discovery tools of the Federal Rules of Civil Procedure in light of recent constitutional arguments, specifically the scope of discovery under Rule 26(b)(1) and the duty to preserve electronically stored information under Rule 37(e). First, this Note seeks to identify the constitutional challenges to American discovery. Second, this Note seeks to compare the American discovery system with the European discovery …

The 2016 Presidential Election: The Next Four Years And Beyond, Dahlia Lithwick, Bertrall L. Ross Ii, Joan Williams, Scott Dodson

UC Law Constitutional Quarterly

On November 15, 2016, UC Hastings College of the Law held an academic post-election panel to consider what the Donald Trump election means for America in the next four years. The panel was moderated by Scott Dodson, Associate Dean for Research and the Harry & Lillian Hastings Research Chair at UC Hastings. The panel included the following: Joan Williams, a distinguished professor of law and the founding director of the Center for WorkLife Law at UC Hastings; Bertrall Ross, a professor of law at UC Berkeley, where he teaches legislation, election law, and constitutional law; and Dahlia Lithwick, who writes …

Digitizing The Private Search Doctrine: Is A Computer A Container, Taylor J. Pfingst

UC Law Constitutional Quarterly

The Private Search Doctrine permits the government to search property that a private citizen previously gained access to and searched, resulting in discovery of contraband. This Doctrine provides that the subsequent search by the government does not constitute a Fourth Amendment "search." Thus, the government does not need to obtain a warrant prior to examining the property and only infringes on an individual's Fourth Amendment rights if the scope of the search exceeds the bounds permitted by the court in that jurisdiction. Different circuits have taken conflicting approaches in determining the appropriate scope of a follow-up search under the Private …

Allowing Lawless Police Conduct In Order To Forbid Lawless Civilian Conduct: The Court Further Erodes The Exclusionary Rule In Utah V. Strieff, George M. Dery Iii

UC Law Constitutional Quarterly

This Article analyzes Utah v. Strieff, in which the Supreme Court applied its attenuation of taint doctrine to drugs and paraphernalia recovered as a result of an illegal stop of a person. The Strieff Court ruled that the evidence, seized during a search incident to arrest after an unlawful seizure, was admissible because the officer learned of an unknown outstanding arrest warrant during the stop. Strieff reasoned that the discovery of this arrest warrant attenuated the connection between the initial illegal seizure and the evidence ultimately seized incident to arrest. This Article examines the concerns created by Strieffs ruling. This …

Shining A Light On The Rights Of The Most Vulnerable, Shauna Marshall

UC Law Constitutional Quarterly

No abstract provided.

Trumping Asylum: Criminal Prosecutors For Illegal Entry And Reentry Violate The Rights Of Asylum Seekers, Natasha Arnpriester

UC Law Constitutional Quarterly

Criminal prosecution for the immigration-related infractions of illegal entry and illegal reentry have escalated dramatically under the Trump Administration, which has made targeting immigrants a top priority. This escalation is happening at a time when the population coming to the U.S. southern border is largely seeking safety from persecution and danger. The United States does not recognize asylum as a defense to illegal entry or illegal reentry, and asylum seekers are not excluded from being charged and criminally prosecuted for these infractions, despite U.S. treaty obligations prohibiting this practice. As a result, people coming to the United States to seek …

Silencing Talk About Race: Why Arizona's Prohibition Of Ethnic Studies Violates Equality, M. Isabel Medina

UC Law Constitutional Quarterly

In 2010, Arizona made national headlines when it enacted laws targeting undocumented immigrants, perceived in the state to be primarily Mexican. Arizona experienced population growth that projected it would become a minority majority state within one or two decades. Republican politicians spearheaded a ban on ethnic studies, with its intended target a successful Mexican American studies program at the Tucson Unified School District. The Mexican American studies program was initiated as part of a desegregation decree in ongoing desegregation litigation against the Tucson Unified School District; state superintendents of education in Arizona branded the program "racist" because students were encouraged …

Lighting The Way Towards Liberty: The Right To Abortion After Obergefell And Whole Woman's Health, Erika Hanson

UC Law Constitutional Quarterly

The federal government has failed to fulfill the constitutional guarantee of equal rights for all. While this promise requires affirmative governmental action to ensure the protection of historically subordinated groups, policymakers persist in using the will of the majority to deny the dignity and fundamental rights of groups lacking political defenses. Luckily, recent developments in the doctrine of marriage equality now allow advocates and supportive lawmakers to remedy this injustice by forever removing the fundamental rights of subordinated groups from political debate. Policymakers must address the harm to subordinated groups posed by a tiered system of fundamental rights through constitutional …

The Fragile Victory For Unaccompanied Children's Due Process Rights After Flores V. Sessions, Elizabeth P. Lincoln

UC Law Constitutional Quarterly

In 2017, the Ninth Circuit Court of Appeals found that when the federal government detains an unaccompanied child, that child has the right to request legal review of his or her custody before an immigration judge. In Flores v. Sessions, the court reaffirmed the right, which had been present in the text of the laws governing the treatment of immigrant youth, but had been ignored by executive branch bodies. In its analysis, the court considered the relationship between a twenty-year-old settlement and two acts of Congress that govern the treatment of immigrant youth. The Flores decision affects the lives of …

Autonomous Vehicles Will Drive Themselves – But They Won’T Regulate Themselves, David Goldstein

UC Law Business Journal

The dawn of a new era of transportation is upon us. Cars that drive themselves are no longer relegated to our imaginations and science-fiction movies. Automobile companies like Tesla and Volvo, as well as search-engine giant Google, are rolling out new features that take over the duties previously charged to the driver of a vehicle. Given the uncertain nature of future legal liability and regulation of vehicles that can drive autonomously, it is imperative that we establish a liability and regulatory framework so that automakers can continue to make advances in the field and consumers can know what to expect …

Licensing Open Government Data, Jyh-An Lee

UC Law Business Journal

Governments around the world create and collect an enormous and wide-ranging amount of data. For various social, political, and economic reasons, open data has become a popular government practice and international movement in recent years. It is estimated that more than 250 national or local governments from around 50 developed and developing countries have launched open government data (OGD) initiatives. Open data policies are widely recognized as a tool to foster government transparency and economic growth. Businesses have also developed innovative applications, products, and services based on OGD. Although OGD is a global movement, it faces a number of unsolved …

The Japanese Business Federation’S Influence On Energy Policy Reform: Fukushima Daiichi Nuclear Disaster, Bridget Cho

UC Law Business Journal

This note focuses on the series of events that were pertinent to the Fukushima Daichii Nuclear Disaster and recommends stringent nuclear power plant license procedures, stronger reform in accident mitigation policies, and heightened transparency between the government and its people. Japan embraces the peaceful use of nuclear technology to provide a substantial portion of its electricity despite being the only country to have suffered the devastating effects of nuclear weapons in wartime.

This note will also discuss how the evolving structure of the Japanese economy has led to a change in the pattern of the business sector’s engagement with energy …

Light On The Mayo: Recent Developments May Diminish The Impact Of Mayo Foundation On Judicial Deference To Tax Regulations, Matthew A. Melone

UC Law Business Journal

It therefore is necessary to consider the possibility that administrative law was an instrument of a class that took a dim view of popularly elected legislatures and a high view of its own rationality and specialized knowledge. This class drew upon popular political power, but primarily to establish another sort of power, which would be exercised by members of its own class, in a manner that reflected the alleged authority that came with their specialized knowledge. Although it did not thereby become the only ruling class, it at least made itself the rulemaking class.