Law Commons^™

Civil Procedure: Personal Jurisdiction And Federalism, Scott Dodson

The Judges' Book

The historical development of personal jurisdiction has featured an important interstate-federalism aim: to keep harmony among sovereign states. By purporting to use state borders to partition case allocation among states, personal jurisdiction follows the mantra that good fences make good neighbors.

This structural component fits uncomfortably with the idea of personal jurisdiction as an agent of the individual right protected by the Constitution’s Due Process Clause. Due process, after all, concerns a state’s relationship to a defendant, not the state’s relationship to another state.

In this chapter, I argue that whatever interstate-federalism value personal jurisdiction might, in theory, protect, the …

Civil Procedure: Personal Jurisdiction And The Fifth Amendment, Scott Dodson

The Judges' Book

Since Pennoyer v. Neff, the Fourteenth Amendment’s Due Process Clause has constrained the exercise of personal jurisdiction by state courts. The Fourteenth Amendment permits state courts to exercise personal jurisdiction in four circumstances: (1) consent, (2) in-state service on an individual, (3) residency or citizenship in the state, and (4) minimum contacts with the state such that personal jurisdiction would not offend traditional notions of fair play and substantial justice. Confining state-court personal jurisdiction to connections between the litigant and the forum state serves not only litigant interests of fairness and reasonableness but also federal interests of interstate harmony.

In …

Constitutional Law: Constitutional Symmetry, Zachary S. Price

The Judges' Book

The United States is closely divided over politics, and these divisions have infected constitutional law. Conservatives, by and large, interpret the Constitution to protect religion, limit gun control, and obstruct federal administrative governance while allowing state-level regulation of moral questions like abortion. Progressives see a mirror-image constitution that advances social justice, confers broad federal power, and allows flexible administrative regulation while limiting state and local police authority and guaranteeing sexual and reproductive autonomy. As national politics have grown divided and polarized, achieving partisan goals through federal legislation has grown more difficult. The two parties have dreamed, in effect, of capturing …

Criminal Law: "Legally Magic" Words: The Accessibility Of Fifth Amendment Rights, Kate Weisburd

The Judges' Book

A basic but underappreciated problem pervades Fifth Amendment doctrine (including Miranda v. Arizona): people may know, in a broad sense, that they have the right to remain silent and to counsel, yet a deep disconnect exists between what ordinary people think is required to invoke those rights and what courts demand. Settled Supreme Court case law requires that the right to counsel and silence must be invoked clearly and unambiguously. In practice, those requirements have produced a body of law in which ordinary language and conduct often does not suffice to invoke either right, simply because the suspect did …

Criminal Law: Secretive Sheriffs: Opacity And Variation In California’S Jail Responses To Covid-19, Aparna Komarla, Hadar Aviram

The Judges' Book

Agnotology, a term coined by Robert Proctor and Iain Boal, is the study of culturally produced ignorance, which assumes that gaps in knowledge are not coincidental but rather reflect social values and interests. In this Chapter, we apply this context to a domain in which information gaps have life-or-death consequences: healthcare in county jails, and more particularly, the availability, or lack thereof, of COVID-19 data from California’s fifty-eight county jail systems.

Our argument is twofold: First, that public ignorance about jail healthcare conditions is not accidental but is instead the product of weak state oversight and a culture of noncooperation …

Employment Law: Governance And Guardrails: Artificial Intelligence And Low-Wage Workers, Seema N. Patel

The Judges' Book

“It’s like magic.” In August 2014, the New York Times reported on how Kronos scheduling software—which uses which uses real-time inputs, including weather forecasts, historical sales data, and nearby events, to predict customer traffic—had created a “chronic crisis over the clock” for Starbucks’s 130,000 baristas. For one barista, Jannette Navarro, the Kronos app controlled everything from how much sleep her four-year-old son might get to what groceries she could afford that month. The software was installed directly onto workers’ personal phones without consultation, negotiation, or notice. What seemed “like magic” to a Kronos executive wreaked havoc on workers’ lives.

A …

Evidence: The Limits Of Limiting Forensic Firearm-Identification Testimony, David L. Faigman

The Judges' Book

For more than a century, firearm examiners have testified in unequivocal terms that they can match bullets or cartridge cases to a specific firearm, often asserting identification “to the practical exclusion of all other firearms.” These claims were widely accepted in courts and rarely subjected to empirical validation.

Over the past two decades, however, they have come under increasing scrutiny from scientists, legal scholars, and government bodies. In particular, scientific reviews of the research basis for firearms and toolmark identification have found that the data do not support such claims of “individualization.” Examiners can identify the type or class of …

Health Law: Incremental Innovation, George Horvath

The Judges' Book

Transformative medical innovations—the ones that disrupt the world—command the lion’s share of attention. But the vast majority of innovations are incremental—the result of small modifications made to existing products. The process of incremental innovation tends to be highly iterative, with products being modified again and again. Over time, dozens or hundreds of small changes can accumulate to the point where contemporary technology bears little resemblance to the technology of years or decades before.

In the field of medical devices regulated by the Food and Drug Administration (FDA), incremental innovation accounts for roughly 99% of new devices. On the upside, incremental …

Ip Law: Ai And Cracks In The Foundation Of Ip, Robin C. Feldman

The Judges' Book

Our implicit image of progress, and the standards we use to calibrate the value of human contributions to that progress, are quietly at risk from the onslaught of AI. AI has the potential to significantly shrink the pool of information and creative work protected by IP, particularly shrinking the protectable space for the work of human contributors.

The changes wrought by AI raise existential questions for society’s conception of human invention. I use the term “existential” here not in the modern sense of threatening something’s existence, but rather in the broad sense of philosophical existentialism, as being concerned with exploring …

Virtual Influencers, Real Liability: Strategies For Companies To Ensure Consumer Protection When Using Ai Influencers, Sherri Hufstedler

UC Law SF Communications and Entertainment Journal

No abstract provided.

When You Wish Upon A Clause, Hannah Lee

UC Law SF Communications and Entertainment Journal

No abstract provided.

Fair Use Or Foul Play? Copyright Law’S Battle Over Using Sound Recordings In Ai Training, Matthew Schurz

UC Law SF Communications and Entertainment Journal

No abstract provided.

How Slow Legislative Reform Allows For Fake News, The Remedies And Solutions To Modernize The Law, Christopher Kidwell

UC Law SF Communications and Entertainment Journal

No abstract provided.

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

Beyond Loper Bright: Iterative Construction At The National Labor Relations Board, Fred B. Jacob, Anne Marie Lofaso

UC Law Journal

“[The agency’s actions] express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions—impressions which may lie beneath consciousness without losing their worth. The board was created for the purpose of using its judgment and its knowledge.”
- Justice Oliver Wendell Holmes, 1907

Trust matters. In the 1935 National Labor Relations Act, Congress entrusted the heavy responsibility of protecting labor peace to a board of experts and an administrative agency, both steeped with experience in resolving labor disputes and fluent in the science of industrial relations. This was no accident. For decades prior, federal courts …

Masthead

UC Law Journal

No abstract provided.

The Autonomy Default Paradigm In Contract Law, Hanoch Dagan, Michael Heller

UC Law Journal

You can scribble an agreement on a napkin or hire lawyers to negotiate a hundred-page contract. Either way, most of your contractual obligations will not be in your document. They will be in the background rules contract law applies absent your express agreement. Justifying these defaults is a core task of contract theory; getting them right is a core task of contract law.

This Article introduces the autonomy default paradigm, a conceptually coherent and normatively attractive account of contract law defaults. We show that defaults are justified to the extent they enhance our autonomy, understood as self-determination. They vindicate our …

The Forever Fight Against Forever Chemicals: Analyzing Loopholes In California’S Pfas Ban For Consumer Products, Jake B. Goldman

UC Law Journal

Per- and polyfluoroalkyl substances (PFAS) are a class of synthetic chemicals used for their unique qualities in manufacturing across numerous industries. PFAS, also known as “forever chemicals,” persist in the environment for long periods of time and cause serious health risks to consumers. Given mounting research on PFAS and their adverse health effects, the California legislature passed four laws banning the chemicals in specific consumer products.

This Note argues that three new California laws requiring manufacturers to replace PFAS with “the least toxic alternative” are inadequate because they are ambiguous. This ambiguity will invite litigation and create business challenges by …

Recent And Forthcoming

UC Law Journal

No abstract provided.

Table Of Contents

UC Law Journal

No abstract provided.

Beyond Comprehension: Why Tax Code Complexity Necessitates Irs Deference, Doron Narotzki, Tamir Shanan, Julianne Jones, Ori Barel, Yifat G. Ben-Yaakov, Tomer Surujon, Revital Yusupov, Or Haim Anidjar

UC Law Business Journal

This Article argues that deference to Internal Revenue Service (“IRS”) interpretations is essential for the effective interpretation of U.S. federal income tax law due to the technical demands inherent in this uniquely complex area. The U.S. federal income tax code, often considered one of the most intricate legal systems, consists of dense, specialized language, nuanced policy considerations, economic theories, and frequently updated provisions. Judges, as generalists, face a daunting challenge in interpreting this complex, ever-evolving body of law without the specialized expertise that the IRS professionals bring. Frequent amendments further add to this complexity, layering additional provisions that require in-depth …

The Role Of First Amendment In Equal Protection And Affirmative Action Analysis: The Compelling Governmental Interest, Simona Grossi

UC Law Constitutional Quarterly

The Supreme Court’s decision in Students for Fair Admissions v. Harvard College has transformed the legal framework governing university admissions, sharply limiting race-conscious policies and compelling institutions to align their diversity objectives with the newly shaped heightened scrutiny under the Equal Protection Clause. Concurrently, the Trump administration’s broad-based attack on diversity, equity, and inclusion (DEI) programs—culminating in executive orders restricting race-conscious initiatives— has further intensified the legal and political pressure on colleges and universities striving to foster inclusive academic environments. This article contends that the First Amendment—particularly its protections of academic freedom and free speech—plays a critical and underutilized role …

Foreword

UC Law Constitutional Quarterly

No abstract provided.

Copyright

UC Law Journal

No abstract provided.

Freedom Of Expression In Next-Generation Computing, Brittan Heller

UC Law Journal

Extended reality (XR)—the integration of virtual, augmented, and mixed reality technologies—creates immersive, embodied, and behaviorally integrated forms of communication that challenge traditional understandings of freedom of expression. While XR offers new opportunities for creativity, civic engagement, and cross-cultural participation, its immersive nature introduces risks of censorship, surveillance, biometric profiling, algorithmic manipulation, and inequitable access.

This Article situates XR within the framework of European human rights law. It begins by identifying the technical and psychological features that distinguish XR from conventional platforms, particularly presence, immersion, and embodiment, which transform speech into multisensory and interactive experiences. It then evaluates how existing legal …

Masthead

UC Law Journal

No abstract provided.

Copyright

UC Law Journal

No abstract provided.

Masthead

UC Law Constitutional Quarterly

No abstract provided.

June 30, 2023: Resurrections And Bad Omens Of A Nadir Court, Zamir Ben-Dan

UC Law Constitutional Quarterly

June 29, 2023 was monumental for racial justice advocates and scholars; the U.S. Supreme Court issued a major decision that eviscerated affirmative action while declaring itself a vanguard of racial equality. The Court’s race-related juridical activities on the following day, June 30th, received far less attention. On June 30, 2023, the Court denied certiorari in five cases directly implicating race. Those denials of certiorari generated five opinions, two concurring in the denial and three dissenting from denial. These five opinions should have created as much buzz as the Court’s affirmative action decision the day prior; examined together, they tell a …

The Role Of Procedural Due Process In Equal Protection And Affirmative Action Analysis: The Narrowly Tailored Prong, Simona Grossi

UC Law Constitutional Quarterly

The Supreme Court’s decision in Students for Fair Admissions v. Harvard College marked the end of affirmative action as traditionally practiced in higher education admissions, forcing universities to seek alternative legal pathways for fostering diversity. At the same time, the Trump administration’s executive orders targeting DEI initiatives have exacerbated the legal uncertainty, raising critical questions about how institutions can preserve fairness in admissions while withstanding both judicial and political scrutiny.

This article argues that Procedural Due Process—when read in conjunction with Equal Protection—provides a constitutionally sound and structurally fair framework for admissions policies that align with strict scrutiny while preserving …