Law Commons^™

Evolution Or Revolution In Telehealth Regulation, George Horvath

Faculty Scholarship

No abstract provided.

Covid-19 Vaccine Mandates For University Students, Dorit Rubenstein Reiss, John Dipaolo

Faculty Scholarship

Universities and colleges (“universities”) reopening after COVID-19 understandably seek to increase safety on campus and reduce the risk of a COVID-19 outbreak. One approach universities and colleges are considering is requiring vaccines from students. This Article addresses the legal framework behind university vaccine mandates for students. It sets out the general constitutional framework and explains why universities are constitutionally permitted to impose reasonable vaccine mandates. It addresses whether universities need to offer a religious exemption, explaining that under current Supreme Court jurisprudence, universities are likely not required to offer a religious exemption, but that may change, and public universities in …

"I Would If Only I Could": How California Cities Can Use State Law To Overcome Neighborhood Resistance To New Housing, Christopher S. Elmendorf, Eric Biber, Paavo Monkkonen, Moira O’Neill

Faculty Scholarship

No abstract provided.

Experimental? It Doesn't Mean What You Think It Means, Dorit Rubenstein Reiss, Arthur J. Caplan

Faculty Scholarship

No abstract provided.

State Administrative Review Of Local Constraints On Housing Development: Improving The California Model, Christopher S. Elmendorf, Eric Biber, Paavo Monkkonen, Moira O’Neill

Faculty Scholarship

Starting in the 1970s, the West Coast states coalesced around roughly similar responses to the problem of excessive local restrictions on housing supply. Local governments were charged with making plans to accommodate projected population growth, subject to review and approval by a state agency. In California, a city’s housing plan must also analyze, mitigate, and remove “constraints” to the development of housing in general. This component of the plan has received little attention, and, according to a recent report of the State Auditor, it hasn’t accomplished much. We argue that it could accomplish much more—if the state housing agency develops …

The Law And Ecology Of Dam Removals, Dave Owen, Kim Sager-Fradkin

Faculty Scholarship

No abstract provided.

Time Enough For Counting: A Unicorn Retrospective, Abraham Cable

Faculty Scholarship

No abstract provided.

Masthead

UC Law Journal

No abstract provided.

Corporate Technologies And The Tech Nirvana Fallacy, Luca Enriques, Dirk A. Zetzsche

UC Law Journal

This Article introduces the term Corporate Technologies (“CorpTech”) to refer to the use of distributed ledgers, smart contracts, Big Data analytics, artificial intelligence and machine learning in the corporate context and analyzes the impact of CorpTech on the future of corporate boards. We focus on the tech manifestation of agency problems within corporations and identify—after considering possible market, governance, and regulatory solutions—elements of a governance framework for the CorpTech age. In particular, we take on a prediction often found in the literature, namely that CorpTech has the potential to solve a number of corporate governance problems for good and even …

Beyond Implicit Bias: Litigating Race And Gender Employment Discrimination Using Data From The Workplace Experiences Survey, Joan C. Williams, Rachel M. Korn, Sky Mihaylo

UC Law Journal

This Article joins other voices in challenging what I will call the “implicit bias consensus” in employment discrimination law, first crystallized in the work of Susan Sturm and Linda Hamilton Krieger. The implicit bias consensus has two basic components. The first is that most employment discrimination today is what Sturm christened “second generation employment discrimination” caused by implicit bias that is uncontrollable and unconscious, subtle and ambiguous. The second component of the consensus is that Title VII is ill-suited to address second generation discrimination.

This Article challenges the implicit bias consensus based on six different datasets from the Workplace Experiences …

The Unitary Executive Theory In Comparative Context, David M. Driesen

UC Law Journal

The debate over the unitary executive theory—the theory that the President should have sole control over the executive branch of government—has proven extremely parochial. Supporters of the theory argue that the original intent of our country’s founders requires presidential control, including a power to remove federal officials from their posts for political reasons. Opponents of the theory rely on functional considerations and our practice of dispersing power more widely. But neither side examines developments abroad to see what light other countries’ experience might shed on the question of whether the Supreme Court should craft a new rule of constitutional law …

From Horseback To The Moon And Back: Comparative Limits On Police Searches Of Smartphones Upon Arrest, Bryce Clayton Newell, Bert-Jaap Koops

UC Law Journal

The search of a smartphone by the police in connection with an arrest carries the potential to intrude into the very core of an arrestee’s private life. Indeed, such a search has been compared to providing a “window[] to our inner private lives,” including aspects of our lives completely disconnected from the reasons for the arrest. In recent years, the supreme courts of the United States, Canada, and the Netherlands (as well as Dutch legislators) have handed down rules about how, and whether, police may search an arrestee’s smartphone upon arrest without first obtaining a warrant or other court order. …

Facilitating Money Judgment Enforcement Between Canada And The United States, James P. George

UC Law Journal

The United States has attempted for years to create a more efficient enforcement regime for foreign-country judgments, both by treaty and statute. Long negotiations succeeded in July 2019, when the Hague Conference on Private International Law (with U.S. participants, including the Uniform Law Commission) promulgated the new Hague Judgments Convention which harmonizes judgment recognition standards but leaves the domestication process to the enforcing jurisdiction. In August 2019, the Uniform Law Commission took a significant step to fill that gap, though limited to Canadian judgments. The Uniform Registration of Canadian Money Judgments Act provides a registration process similar to that for …

Corporations And The Original Meaning Of “Citizens” In Article Iii, Mark Moller, Lawrence B. Solum

UC Law Journal

Article III confers the judicial power of the United States over controversies between “citizens” of different states. In Section 1332(c) of Title 28 of the United States Code, Congress has provided that for the purposes of diversity jurisdiction, corporations are citizens of the state in which they are incorporated and the state in which their principal place of business is located. This raises the question whether corporations are citizens within the original public meaning of Article III of the Constitution. This Article demonstrates that in 1787 the word “citizen” referred only to natural persons and therefore that corporations cannot be …

Unearthing The Origins Of Quasi-Property Status, Alix Rogers

UC Law Journal

Under contemporary American law, human corpses and some bodily parts are classified as quasi-property. Quasi-property is an American legal conception composed of limited interests that mimic some of the functions of property, but does not formally qualify as property. It is a uniquely American, idiosyncratic and misunderstood legal category. Quasi-property status is most typically associated with intellectual property given the Supreme Court decision of International News Services v. Associated Press. That human remains and bodily materials are classified as quasi-property is less well known. The confusion surrounding the quasi-property status of the dead has negative implications for current and future …

Foreword, Richelle Joy Gernan

UC Law Constitutional Quarterly

No abstract provided.

Driver’S License Suspensions For Nonpayments: A Discriminatory And Counterproductive Policy, Melissa Toback Levin

UC Law Constitutional Quarterly

Driver’s license suspensions for nonpayments of traffic debt disproportionately harm people of color and are legally untenable. Across the country, at least seven million people have had their driver’s license suspended for traffic debt—nonpayments of traffic tickets and nonappearances in traffic court. As this article demonstrates, traffic debt suspensions force people to make an impossible choice: stop driving—and lose access to work, childcare, healthcare, food, and other basic necessities— or keep driving, and risk criminal charges, more unaffordable fines and fees, and even incarceration. License-for-payment laws ultimately create conditions that parallel modern-day debtor’s prisons and are vulnerable to several legal …

The Strict Scrutiny Of Black And Blaqueer Life, T. Anansi Wilson

UC Law Constitutional Quarterly

No abstract provided.

Exclusionary Zoning, School Segregation, And Housing Segregation: An Investigation Into A Modern Desegregation Case And Solutions To Housing Segregation, Sara Zeimer

UC Law Constitutional Quarterly

No abstract provided.

Furtive Blackness: On Blackness And Being, T. Anansi Wilson

UC Law Constitutional Quarterly

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …

Super Mario Decompiled, Joseph Godfrey

UC Law Science and Technology Journal

Super Mario 64 was a video game released to critical acclaim in 1996. 24 years later, a group of dedicated fans reverse engineered the game and released reconstructed source code publicly on GitHub. Soon afterwards, an unofficial PC version of the game began circulating the internet. The decompilation project presents an opportunity to examine the legal status of reverse engineering under US Copyright law, and whether publicly releasing reverse engineered code is a fair use.

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.

Katz And Covid-19 How A Pandemic Changed The Reasonable Expectation Of Privacy, Wayne Unger

UC Law Science and Technology Journal

COVID-19 spread to 189 countries and infected tens of millions of people in the matter of months. Organizations, including governments and employers, turned to health surveillance technologies to slow the spread and combat the disease. Protected health information and personal information are required for the proper and effective functioning of the health surveillance technologies. The collection, use, and dissemination of protected health and personal information raised data privacy and security concerns. But under the current data privacy and security regime—based on the reasonable expectation of privacy standard—protected health and personal information is not protected to the extent that it needs …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Black Lives Matter: Banning Police Lynchings, Mitchell F. Crusto

UC Law Constitutional Quarterly

In the United States, police officers are granted a license to use lethal force and are subsequently exonerated from personal criminal liability for fatal killings, particularly when the victim is an African American. This Article advances the normative claim that the Court’s death penalty jurisprudence, including the “Cruel and Unusual Punishment” Clause of the Eighth Amendment, protects the victims of police homicides. Further, it contends that the police use of lethal force against African Americans constitutes “lynching”—a State-sponsored act of terror that supports systemic racism. Finally, it posits that the Constitution mandates that the police use of lethal force be …

Exceptional Circumstances: Immigration, Imports, The Coronavirus, And Climate Change As Emergencies, Daniel A. Farber

UC Law Journal

President Trump has used emergency powers to achieve key parts of his policy agenda, exemplified by his travel ban, funding for the border wall, and tariffs on many imports. He has also declared the 2020 coronavirus pandemic a national emergency, but has taken relatively little action under this declaration to date. This Essay examines how the Administration has invoked emergency powers in these and other settings, along with the responses of the courts. This Essay also considers how these actions could be used as precedents by future Presidents, such as declaring a climate change emergency. Finally, this Essay discusses the …

Uncooperative Environmental Federalism 2.0, Jonathan H. Adler

UC Law Journal

As a presidential candidate, Donald Trump promised to curtail federal environmental regulation and empower the states. Has the Trump Administration made good on these pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This Essay provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.

How Much Procedure Is Needed For Agencies To Change “Novel” Regulatory Policies?, Ming Hsu Chen

UC Law Journal

The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make policy, it need not provide notice to the public or allow comment on the new rule; this makes changes easier, faster, and less subject to judicial review. Under the Obama Administration, guidance documents were used to implement policy shifts in many areas of administrative law, including civil rights issues such as transgender inclusion and campus sexual harassment, and immigration law issues such as deferred …

Operationalizing Internal Administrative Law, Christopher J. Walker, Rebecca Turnbull

UC Law Journal

As part of the Hastings Law Journal’s Administrative Law in the Age of Trump Symposium, this Essay argues that administrative law should stop fixating on federal courts. While court-centric external administrative law serves an important role in administrative practice, it is far from sufficient to safeguard against agency overreach. After all, the vast majority of agency actions never make it to court. Instead, this Essay builds on recent suggestions that federal agencies can leverage internal administrative law to self-discipline against abuses of power. By surveying internal administrative law in various regulatory contexts and drawing substantially from the important work of …

Statutory Purpose In The Rollback Wars, Alice Kaswan

UC Law Journal

The Trump Administration has been rolling back environmental and other regulations at a rapid rate. Each time, they are called upon to interpret their authorizing statutes. As they reverse previous administrations’ regulations, how do their new interpretations address the statutes’ fundamental objectives? In this Essay, I assess one part of the National Highway Traffic Safety Administration (NHTSA)’s and Environmental Protection Agency (EPA)’s rollback of clean car standards: a regulation stating that the Energy Policy and Conservation Act (EPCA) preempts California’s trailblazing controls on vehicles’ greenhouse gas emissions. I argue that the agency preemption analysis gave insufficient attention to Congress’s explicit …