Law Commons^™

Trafficking In Information: Evaluating The Efficacy Of The California Transparency In Supply Chains Act Of 2010, Alexandra Prokopets

UC Law SF International Law Review

The California Transparency in Supply Chains Act of 2010 (CTSCA) took effect in January 2012. It was designed in an effort to eradicate forced labor and human trafficking in business supply chains, which the legislature recognized as violations of state, federal, and international law. The CTSCA does not forbid the sale of goods produced through trafficked labor. Instead, the CTSCA asks companies to disclose their labor practices to consumers in order to allow buyers to differentiate companies based on their efforts to supply products free from slavery and trafficking, which will in turn inform consumers' purchasing decisions and drive companies …

Grasshopper On Reed, Stewart G. Pollock Justice

UC Law Environmental Journal

No abstract provided.

The California Offset Game: Who Wins And Who Loses?, Alan Ramo

UC Law Environmental Journal

No abstract provided.

The Constitutionality Of Prolonged Administrative Segregation For Inmates Who Have Received Sex Reassignment Surgery, Eric T. Fleischaker

UC Law Constitutional Quarterly

In 2012, a Massachusetts district court judge issued a controversial decision in Kosilek v. Spencer when he ordered the state to pay for a transgender inmate's sex reassignment surgery. The court ruled that denying sex reassignment surgery to an inmate with Gender Identity Disorder is a violation of the Eighth Amendment. However, the court did not answer the question of where to place the inmate after the surgery. That decision was left up to the prison administrators.

The court utilized a five-step Eighth Amendment test to determine when an inmate has a constitutional right to medical services or care and …

Dog Sniffs, Technology, And The Mythical Constitutional Right To Criminal Privacy, Kenneth J. Melilli

UC Law Constitutional Quarterly

Suppose the government was capable of detecting criminal conduct by some method or device that would not reveal any information concerning lawful items or activities. Could the acquisition of such information under these circumstances constitute an "unreasonable search" under the Fourth Amendment?

This scenario is not merely hypothetical. The most prominent reality in which this question arises involves specially trained dogs, which, using their superior sense of smell, can alert to the presence of illegal drugs. Most dramatically, suppose that such a specially trained dog ("drug dog"), from a location outside a home, alerts to the presence of illegal drugs …

From Spectacle To Speech: The First Amendment And Film Censorship From 1915-1952, Jessica J. Hwang

UC Law Constitutional Quarterly

Through the lenses of both history and the law, this Note examines the parallel transformation of the First Amendment and the medium of film. When the Supreme Court first addressed the censorship of moving pictures in 1915, the Court unanimously rejected film as mere "spectacle" unworthy of constitutional protection. However, in 1952, the Court revisited the same issue and unanimously overturned its prior decision-moving pictures were now protected under the First and Fourteenth Amendments. The reversal ended an era of censorship and marked a new understanding of both speech and film in the law. Neither a fortuitous nor an inevitable …

A Private Sector Solution To A Public Problem, Chris Molina

UC Law Constitutional Quarterly

Over two centuries after the Bill of Rights was enacted, the Supreme Court finally resolved the controversy surrounding the meaning of the Second Amendment in the landmark case, District of Columbia v. Heller. Specifically, the Court held that the Second Amendment protected an individual's right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. In reaching this decision, the Court determined that the Amendment's prefatory clause, "A well regulated Militia, being necessary to the security of a free State," did not limit the scope of the right to bear arms for militia purposes. Although the …

In Re C.P.: The Ohio Supreme Court's Expansion Of Roper V. Simmons And Graham V. Florida To The Realm Of Juvenile Sex Offender Registration, Ben Blumenthal

UC Law Constitutional Quarterly

In the landmark 2012 Ohio Supreme Court case In re C.P., the court held the statute mandating a minor's automatic lifetime registration as a sex offender constituted cruel and unusual punishment in violation of the Eight Amendment and Ohio's own constitutional prohibition against cruel and unusual punishment. Additionally, the court found automatic registration ran afoul of the Fourteenth Amendment's Due Process Clause.

In re C.P. raises several critical questions. Chief amongst them is whether categorical principles enunciated in Roper v. Simmons and Graham v. Florida should even apply to juvenile sex-offender registration schemes. This question is highly relevant because an …

The New Flat Tax: A Modest Proposal For A Constitutionally Apportioned Wealth Tax, John T. Plecnik

UC Law Constitutional Quarterly

"Eat the poor children," proposes Jonathan Swift. "Nay," protests Occupy Wall Street, "Eat the rich!" This Article does not propose eating the rich with draconically high taxes. However, the United States has experienced years of multibillion dollar deficits. Many liberals have proposed a European-style value added tax or VAT to balance the budget. Many conservatives have proposed a "fair" or flat tax. Like the Devil, regressive consumption taxes go by many names. Whether they know it or not, liberals and conservatives are proposing essentially the same thing-a federal sales tax, which disproportionately impacts the poor and middle class. This Article …

Analyzing The Constitutional Implications Of The Department Of Veterans Affairs' Process To Determine Incompetency: Is The Federal Government Violating The Second Amendment And Due Process, Joshua Flynn-Brown

UC Law Constitutional Quarterly

Over the past decade the Department of Veterans Affairs ("VA") quietly reported hundreds of thousands of veterans to the National Instant Criminal Background Check list. Placement on the list prevents veterans from obtaining firearms from federal firearms licensees, effectively precluding exercise of the fundamental right to own a firearm. As of June 1, 2012, there were 153,298 names on the list with a shocking 99.3% of them from the VA. The VA is overreporting veterans by utilizing a very low financial incompetence standard: Once it determines that a veteran requires a fiduciary to administer benefit payments, the VA reports that …

The U.S. Supreme Court's Failure To Fix Plea Bargaining: The Impact Of Lafler And Frye, Cynthia Alkon

UC Law Constitutional Quarterly

Virtually every criminal conviction in the United States is the result of a guilty plea, not a jury trial. Yet it was not until 2012, in the companion cases of Lafler v. Cooper and Missouri v. Frye, that the U.S. Supreme Court recognized a defendant's constitutional right to effective assistance of counsel during plea bargaining. Legal commentators suggested that these cases were "the single greatest revolution in the criminal justice process since Gideon v. Wainwright." But will things really improve for defendants in the wake of Lafler and Frye? The simple answer is: "No." Lafler and Frye will not bring …

Bring Your Own Devices: A Cautionary Tale For Public Employees During Investigatory Searches, Julie Chow

UC Law Constitutional Quarterly

The advancement of technology-specifically in the form of electronic communication devices-has given rise to a new phenomenon known as "Bring Your Own Device," or "BYOD," whereby employees use their personal electronic devices, such as smartphones, laptops and tablets, for work purposes. While this growing trend may be beneficial to employers and employees, it raises potential problems, especially in the area of employee privacy for those who work in state and local government. The extension of BYOD practices to public employers and government agencies raises Fourth Amendment concerns regarding whether employers may search these employee-owned devices for work purposes in the …

Passwords Please: Rethinking The Constitutional Right To Informational Privacy In The Context Of Social Media, Sara E. Stratton

UC Law Constitutional Quarterly

Much attention has been placed on social media privacy in the workplace. There have been several reports of public employers directing job applicants during their interview to divulge their username and password to allow the government to review the applicant's social media activity as part of a background check. This Note contends that the practice of public employers requiring applicants to provide their social media login information violates the constitutional right to informational privacy. With increasing access to the Internet and the popularity of social media, personal information on the Internet is becoming more accessible than ever before. Although the …

The New Jim Crow - Recovering The Progressive Origins Of Mass Incarceration, Anders Walker

UC Law Constitutional Quarterly

This Article revisits the claim that mass incarceration constitutes a new form of racial segregation, or Jim Crow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the "new" and "old" Jim Crows, namely the debt that each owe to progressive and/or liberal politics. In a manner that scholars like Michelle Alexander forget, both racial segregation and mass incarceration owe their existence in part to discourses of reform aimed at promoting black interests, albeit with perverse results. Recognizing the aspirational origins of such systems helps to better explain how they came into being, …

On War And Peace In Cyberspace - Security, Privacy, Jurisdiction, Lothar Determann, Karl T. Guttenberg

UC Law Constitutional Quarterly

The public debate surrounding Edward Snowden's revelations about NSA spying, and government surveillance in times of war and peace more generally, has been passionate and unfocused. This Article takes a look at the legal background and current reform proposals. First, it puts the recent international and domestic outrage regarding the NSA's programs into the context of other countries' intelligence gathering, sharing and cooperation practices. Next, it recalls the purposes of espionage and the legality of spying under international law as well as under national laws from the perspective of the spying and spied-upon government. It then proceeds to assess the …

Incoherent And Indefensible: An Interdisciplinary Critique Of The Supreme Court's Void-For-Vagueness Doctrine, Ryan Mccarl

UC Law Constitutional Quarterly

The Supreme Court's "void-for-vagueness" (or simply "vagueness") doctrine, rooted in the substantive due process guarantee of the Fifth and Fourteenth Amendments, is occasionally used to strike down statutes that "fail to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" and "encourage arbitrary and erratic arrests and convictions."

This Article first argues that the doctrine contains no unique element that separates it from other substantive due process principles. Then, the Article briefly discusses the concept of vagueness as understood by linguists and philosophers working outside the legal community. Finally, the Article concludes …

Probability, Confidence, And The Constitutionality Of Summary Judgment, Luke Meier

UC Law Constitutional Quarterly

Professor Suja Thomas has famously asserted that summary judgment violates the Seventh Amendment guarantee of a right to a jury trial in civil cases. Most commentators and courts, however, continue to believe that summary judgment is constitutional and that the Supreme Court in Fidelity & Deposit Co. v. United States resolved this issue.

This Article argues that this entire debate is misguided. The current debate has proceeded under the assumption that every summary judgment raises identical Seventh Amendment concerns. The reality, however, is more complex. This Article distinguishes between the concepts of probability and confidence, both of which can be …

The Story Of Prudential Standing, S. Todd Brown

UC Law Constitutional Quarterly

Prudential standing, it seems, is the latest target in the Roberts Court's effort to "bring some discipline" to jurisdictional and pseudo-jurisdictional concepts. During the Court's last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts' prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing …

Using Section 2 Of The Voting Rights Act To Fight Voter Supression Tactics After Shelby County V. Holder Without A New Section 4(B) Formula, Jessica Cassella

UC Law Constitutional Quarterly

In 2012, the state of Texas attempted to require residents to present photo identification when casting a ballot. The United States Department of Justice objected to the implementation of this law under Section 5 of the Voting Rights Act because data showed that this law would disproportionately impact Hispanic voters in Texas. Data revealed that Hispanic voters were 46.5% more likely than non-Hispanic voters to lack the identification that would be required to vote. Also, the data showed that Hispanic voters were more likely than non-Hispanic voters to encounter barriers when attempting to get the proper documentation, including disproportionately lacking …

Regulating The Unregulable: Finding The Proper Scope For Legislation To Combat Copyright Infringement On The Internet, Melis Atalay

UC Law SF Communications and Entertainment Journal

This note seeks to critically evaluate the current trend of copyright legislation, and use the response for legislation to hypothesize what sort copyright legislation for the Internet may be successful in the future. The SOPA/PIPA legacy provides evidence for today's legislature that broad reforms will not work. Indeed the reigning in seen in OPEN was a reflection of SOPA/PIPA progeny being responsive to public outcry over SOPA/PIPA. I conclude that OPEN would have been an appropriate balance of constriction and Internet availability. If passed, OPEN would have been a step in the right direction to combat the illegal access and …

Celebrity Politicians And Publicity Rights In The Age Of Obama, Michael G. Bennett

UC Law SF Communications and Entertainment Journal

The right of publicity is a relatively marginalized yet increasingly radical form of intellectual property. Typically, celebrities use it to prevent freeloaders from profiting on their fame by making unauthorized use of their image, likeness or signature to make goods or services more attractive to consumers. The right of publicity allows famous individuals to stop this type of behavior by providing a property right in identity or persona. Brandished by celebrities who are also political figures, though, the doctrine can become a powerful means of chilling political speech, and therefore a direct threat to First Amendment free speech rights. The …

Bag Men And The Ghost Of Richard Jewell: Some Legal And Ethical Lessons About Implied Defamation, Headlines, And Reporting On Breaking Criminal Activity From Barhoum V. Nyp Holdings, Clay Calvert, Daniel Axelrod, Sarah Papadelias, Linda Riedemann

UC Law SF Communications and Entertainment Journal

This article analyzes and explores the complex issues of libel by implication and defamatory meaning raised in the ongoing libel suit of Barhoum v. NYP Holdings. The case pivots on the New York Post's "BAG MEN" cover that ran on April 18, 2013, and featured a large photo of two men cleared of wrongdoing in connection with the Boston Marathon bombing. This article, which compares and contrasts Barhoum to decisions such as Kaelin v. Globe Communications Corp. and Stanton v. Metro Corp., also examines the possible impact of the New York Post's tiny front-page disclaimer. Furthermore, this article considers how …

Rethinking Online Privacy Litigation As Google Expands Use Of Tracking: Giving Meaning To Our Online Browsing And The Federal Wiretap Act, Filip Babic

UC Law SF Communications and Entertainment Journal

This note will argue that Google's new privacy policies violate the Wiretap Act as amended by the Electronic Communication Privacy Act. The Wiretap Act provides a cause of action against anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." The Wiretap Act, originally drafted to prevent eavesdropping on telephone conversations, requires interception of the contents of communication and not merely the circumstances surrounding the communication. As Google's practices have made it easier for users to characterize their searches as the "contents of communication," the Wiretap …

Mad Money: Rethinking Private Placements, Abraham Cable

Faculty Scholarship

Currently, regulations try to limit unregistered sales of stock (private placements) to the “smart money,” either by informing investors through disclosure or excluding unsophisticated investors from the market. In theory, these smart-money approaches promote the dual goals of capital formation and investor protection. But in practice, regulators have struggled to craft effective disclosure or screening mechanisms. In light of these failures, this Article advocates for a new approach—investment caps that allow every investor a limited amount of “mad money” to invest in risky private placements. This mad-money approach can protect investors by encouraging basic diversification and liquidity, while advancing capital …

Relying On Government In Comparison: What Can The United States Learn From Abroad In Relation To Administrative Estoppel, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.

Citizen Participation In Criminal Trials In Japan: The Saiban-In System And Victim Participation In Japan In International Perspectives, Setsuo Miyazawa

Faculty Scholarship

No abstract provided.

Wireless Internet Searches: How The Fourth Amendment Applies To Police Searches Of Information Accessed Over A Wireless Internet Connection, Taylor Hobin

UC Law Constitutional Quarterly

In a series of rulings by the U.S. District Court for the District of Oregon and the Ninth Circuit Court of Appeals, it is suggested that a person may not have an expectation of privacy in some computer files that are accessible through a secured, or unsecured, wireless network. This Note uses the reasoning in these court decisions to create a framework for analyzing the Fourth Amendment's application to secured and unsecured wireless Internet networks.

This Note concludes that the trespass analysis derived from United States v. Jones would establish a more predictable and functional standard when analyzing a search …

Criminalizing The Armchair Terrorist: Entrapment And The Domestic Terrorism Prosecution, Dejan M. Gantar

UC Law Constitutional Quarterly

A variety of factors plague a defendant's rights in a domestic terrorism trial. This Note focuses on contemporary domestic terrorism prosecutions in which the defendants raise an entrapment defense. It suggests that federal courts apply a lower standard for prosecutors in proving predisposition by allowing nothing more than evidence of a defendant's religious or political beliefs, or general "impulse to lash out," to demonstrate predisposition. This Note further argues that this evidentiary laxity establishes a double standard in terrorism cases, and also manifests First Amendment problems.

The crux of this Note is that federal courts should refine the entrapment doctrine …

The Tower Of Babel: Human Rights And The Paradox Of Language, Moria Paz

Faculty Scholarship

Key human rights instruments and leading scholars argue that minority language rights should be treated as human rights, both because language is constitutive of an individual’s cultural identity and because linguistic pluralism increases diversity. These treaties and academics assign the value of linguistic pluralism in diversity. But, as this article demonstrates, major human rights courts and quasi-judicial institutions are not, in fact, prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Outside narrow exceptions or a path dependent nationalpolitical compromise, these enforcement bodies continuously allow the state actively to incentivize assimilation into the dominant …

The New Speech, Andrew Tutt

UC Law Constitutional Quarterly

Could the government prevent Facebook from deleting an individual's Facebook account without first following government-prescribed procedures? Intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Require social networks and search engines to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Demand that some user information or data be deleted, withheld, made inalienable, nontransferable, ungatherable, or uncollectable? Engage in detailed regulation of the intellectual property and privacy relationships that inhere between individual users and the platforms they engage?

Each …