Law Commons^™

Justice Roger J. Traynor, Pragmatism, And The Current California Supreme Court, Stephen D. Sugarman

UC Law Journal

California Supreme Court Justice Roger J Traynor entered the debated between pragmatists and formalists, siding with the former in both his scholarly writings and in his judicial opinions, especially in torts. In this Article, I explore what I have identified as the leading torts decisions of the California Supreme Court involving personal injury or death in the past twenty years. I first provide background on the rise of strict product liability and an explanation of what I see as the current California Supreme Court’s misguided reliance on the Rowland factors, which promote the treatment of “no breach” cases as “no …

Roger Traynor, The Legal Process School, And Enterprise Liability, Edmund Ursin

UC Law Journal

Roger Traynor, who served on the California Supreme Court from 1940 to 1970, the last five years as Chief Justice, was one of America’s great judges. This Article compares Traynor’s view of the lawmaking role of courts with the dominant jurisprudential perspective of mainstream legal scholars at time, that of the legal process school.

Today it is widely believed that Traynor was a “firm advocate of the legal process” approach to judicial lawmaking. The thesis of this Article, however, is that Traynor was a legal realist whose jurisprudence of what Judge Richard Posner has termed legal pragmatism was at odds …

Putting Names To Money: Closing Disclosure Loopholes, Gian Gualco-Nelson

UC Law Journal

Elections create an opportunity for voters to get to know the candidates, but elections also give voters the opportunity to get to know their fellow voters. Campaigns are obligated to disclose the identity of their donors, which can make these donors’ political affiliations known to the world. Also, the identity of a donor can adversely affect the recipient’s public image and potentially, the election. These disclosure requirements arguably enable stigmatizing candidates and fellow voters for their political ideology, but this is offset by the desire to make elections transparent.

In today’s polarized society, the risk of stigma seems greater than …

Supreme Court Politics And Life Tenure: A Comparative Inquiry, Kevin Costello

UC Law Journal

While the process of nominating and confirming justices to the U.S. Supreme Court has always been political in nature, the three most recent nominations of Merrick Garland, Neil Gorsuch, and Brett Kavanaugh illustrate the extent to which the confirmation process has become especially partisan. Whereas the nominations of Antonin Scalia and Ruth Bader Ginsburg each received broad, bipartisan support, no nominee since Stephen Breyer has received more than eighty votes in the Senate. Furthermore, for the first time since 2004, the economy is not the political issue that voters are most likely to consider “very important;” that designation now belongs …

Expanding The Regulation Of Online Speech Through The Commerce Clause To Reduce Cyber Harassment, Katherine Parker

UC Law Constitutional Quarterly

This Note focuses on one potential solution for harassment many women face online: federal regulation of cyber-threats and cyber harassment. It argues that speech used online to harass and intimidate women may be regulated because the speech is not protected under the First Amendment and because the mode of communication—the Internet—is a regulatable instrumentality of commerce. Thus, this Note posits that online harassment can and should be regulated through the Commerce Clause to ensure that women can enjoy use of the internet without cyber-threats and cyber harassment.

The Twenty-First Century Poll Tax, Ryan A. Partelow

UC Law Constitutional Quarterly

Although disenfranchising voters over outstanding legal financial obligations (“LFOs”) is widely criticized, no court has yet been persuaded to strike down these laws. The practice continues to disenfranchise people based on wealth, and disproportionately affects the voting rights of people of color due to inherent racial disparities in socioeconomic status and the American criminal justice system. Although the concept of felon disenfranchisement itself has been affirmatively upheld by the U.S. Supreme Court, this Article argues that disenfranchisement for outstanding LFOs is more akin to the poll tax jurisprudence than to the felon-voting cases.

This Article aims to add to a …

Toward Tax Reform That Mirrors Our Better Selves Book Review: Anthony C. Infanti, Our Selfish Tax Laws (2018), Leo P. Martinez

UC Law Constitutional Quarterly

Professor Infanti does everyone a service by using comparative law principles to inform the tax policy debate. The lack of discipline overlap—tax law and constitutional law come easily to mind—only worsens the scarcity of scholarship that examines the Code in nuanced and constructive ways.

In his book, Tony Infanti uses comparative law principles to show how effective it can be to look at tax law in a different light Professor Infanti has chosen two separate areas as his vehicles for comparative illustration and examination of the selfishness of tax law: (1) U.S. housing policy and (2) the concept of the …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Foreword, Wendy Melissa Hernandez

UC Law Constitutional Quarterly

No abstract provided.

Weeding Out Injustice: Amnesty For Pot Offenders, Mitchell F. Crusto

UC Law Constitutional Quarterly

There are a growing number of States that have legalized marijuana, challenging the view that marijuana is a dangerous drug. These States are taking positions relative to both the retroactivity of the new laws and to amelioration of past offenses, which arguably contradict United States Supreme Court decisions on the retroactivity of changes in substantive criminal standards. And, many States recognize that past marijuana laws have greatly contributed to the problems related to a broken criminal justice system, including mass incarceration and racial disparities, particularly to the devastation of communities of color.

In response to these legal developments, this Article …

Masthead

UC Law Journal

No abstract provided.

Dying For Equal Protection, Teri Dobbins Baxter

UC Law Journal

When health policy experts noticed that health outcomes for African Americans were consistently worse than those of their White counterparts, many in the health care community assumed that the poor outcomes could be blamed on poverty and lifestyle choices. Subsequent research told a different story. Studies repeatedly showed that neither money, nor marriage, nor educational achievement protect African American men, women, or children from poor health. Instead, the disparities were more likely explained by racism. Specifically, multiple studies have shown that experiencing racism has been linked to increased infant and maternal mortality rates, elevated stress levels, and an increased risk …

Psychological Distress, Mental Disorder, And Assessment Of Decisionmaking Capacity Under U.S. Medical Aid In Dying Statutes, Lois A. Weithorn

UC Law Journal

This Article examines concepts of treatment decisionmaking capacity relevant to medical aid in dying as it is currently authorized in the United States. In order to be eligible for medical aid in dying in one of the ten jurisdictions now allowing such assistance, patients must be capable of making an informed health care decision. Under many of the governing statutes, special attention is given to whether a patient is “suffering from,” for example, “a psychiatric or psychological disorder or depression” that is causing impaired judgment.

This Article analyzes the pertinent statutory provisions, examining the meaning of terms such as “capacity” …

From A Panacea To A Panopticon: The Use And Misuse Of Technology In The Regulation Of Judges, Amnon Reichman, Yair Sagy, Shlomi Balaban

UC Law Journal

This Article reveals the untold story of Legal-Net, Israel’s cloud-based judicial management system. While scholarly attention has thus far focused on the narrow question of the impact technology may have on judicial decision-making or on efficiency, little has been written on the manner in which technology affects the regulation and management of judges and the administration of justice as a whole. Through a combined historical analysis and interview methodology, we trace the development of Legal-Net from the early 1990s and situate it within a theoretical law-and-technology context. Detailing Legal-Net’s trajectory provides meaningful insights as to the relationship between regulation, technology, …

Reconceiving Legal Siblinghood, Ruth Zafran

UC Law Journal

How should the state treat siblings’ legal relationships in cases where the relationship is based solely on genetics, such as between siblings who were born of the same sperm donor, but did not grow up together? How should it treat siblings who were born to the same family but share no genetic connection at all? These are just two formulations of the type of legal dilemmas arising ever more frequently concerning the legal recognition of siblings who are born to families created by gamete donation. In exploring “legal siblinghood” in donor-conceived families, this Article offers a contribution to the literature …

Managerial Fixation And The Limitations Of Shareholder Oversight, Emily Winston

UC Law Journal

BlackRock’s recent public letters to the CEOs of the companies in which it invests have drawn substantial attention from stock market actors and observers for their conspicuous call on corporate CEOs to focus on sustainability and social impacts on non-shareholder stakeholders. This Article explores the market changes that propelled BlackRock into a position to make such a call, and whether institutional shareholders can be effective monitors of these broad social goals. It argues that while corporate attention to non-shareholder stakeholders can improve firm value, shareholder oversight of these stakeholder relationships will not succeed in having this effect.

In the past …

Google—Do Not Pass Go, Do Not Collect $200: Why The Tech Giant Is A “Bad” Monopoly, Alicia Ginsberg

UC Law Journal

Congress enacted the Sherman Act in 1890 to promote competition and creativity in the marketplace. The Sherman Act prohibits agreements that restrain trade and lays out rules regarding monopoly power. This Note explores three distinct theories under which Google, one of the most successful technology companies in the world, could be found to have violated the Sherman Act. Specifically, in violation of Sections 1 and 2 of the Sherman Act, Google “ties” its products together and forces mobile device manufacturers to sign exclusive dealing agreements preventing them from purchasing products from Google’s competitors. Further, Google’s systematic obstruction of competing Android …

Unmasking The Right Of Publicity, Dustin Marlan

UC Law Journal

In the landmark 1953 case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank first articulated the modern right of publicity as a transferable intellectual property right. The right of publicity has since been seen to protect the strictly commercial value of one’s “persona”—the Latin-derived word meaning the mask of an actor. Why might Judge Frank have been motivated to fashion a transferable right in the monetary value of one’s public persona distinct from the psychic harm to feelings, emotions, and dignity rooted in the individual and protected under the rubric of privacy?

Judge Frank was a leading figure …

Affording Obamacare, Isaac D. Buck

UC Law Journal

As it approaches its tenth birthday, the Patient Protection and Affordable Care Act (ACA) is devolving. Intended to solve problems that had vexed American health care for generations, the ACA built a comprehensive structure by providing more Americans with accessible health insurance, reordering the private insurance market, expanding and reconfiguring Medicaid, and installing rational incentives into America’s health care enterprise. Without question, it was the most important piece of health care legislation since the mid-1960s, and it brought about positive change for millions of Americans.

However, over its short lifespan, the ACA has faced persistent practical, popular, and policy-based challenges. …

Constitutional End Games: Making Presidential Term Limits Stick, Rosalind Dixon, David Landau

UC Law Journal

Presidential term limits are an important and common protection of constitutional democracy around the world. But they are often evaded because they raise particularly difficult compliance problems that we call “end game” problems. Because presidents have overwhelming incentives to remain in power, they may seek extraordinary means to evade term limits. Comparative experience shows that presidents rely on a wide range of devices, such as formal constitutional change, wholesale constitutional replacement, and manipulation of the judiciary to get around permanent bans on reelection. In this Article, we draw on this experience to show that, in many contexts, weaker bans on …

Playing Both Sides? Branded Sales, Generic Drugs, And Antitrust Policy, Michael A. Carrier, Mark A. Lemley, Shawn Miller

UC Law Journal

The issue of high drug prices has recently exploded into public consciousness. And while many potential explanations have been offered, one has avoided scrutiny. Why has the growth in generic drugs not resulted in lower drug prices?

In this Article, we explore a phenomenon we call “playing both sides”: companies that participate in pharmaceutical markets as both brand owners and generics. We hypothesize that companies that earn a significant amount of their revenue from patented drugs may have less incentive to aggressively pursue a generic agenda, since patented drugs generate far more revenue than generic drugs do.

To investigate this …

Net Neutrality: A State[D] Approach, Katherine Grainger

UC Law Journal

In 2018, the Federal Communications Commission ended federal net neutrality protections in its Restoring Internet Freedom Order. In response, many states introduced legislation to create their own state-level protections. States believe these protections are necessary, given the anticompetitive nature of broadband internet and the resulting lack of choice that consumers face today in the broadband internet market. However, state regulations are the wrong response to the issue, as these regulations are likely to be federally preempted. Additionally, state regulations are logistically difficult to enforce across different states, given the interstate character of modern broadband internet. Instead, this Note proposes several …

The Inadequacies Of The Cybersecurity Information Sharing Act Of 2015 In The Age Of Artificial Intelligence, Bert Lathrop

UC Law Journal

The relentless accumulation of private consumer information through online services has dramatically expanded the attack surface available to cyber-criminals and belligerent state actors looking to either enrich themselves or disrupt digital service operations. In response to this growing threat and despite sharp criticism from privacy advocates, Congress passed the Cybersecurity Information Sharing Act of 2015 (CISA) with the aim of enabling private parties and the federal government to better protect themselves through improved availability of cyber threat intelligence. This intelligence is generally derived from organizations’ observations of activity on their systems and networks. CISA authorizes private entities, and state, local, …

Legal Rights For Nature: How The Idea Of Recognizing Nature As A Legal Entity Can Spread And Make A Difference Globally, Kaitlin Sheber

UC Law Environmental Journal

In recent years, a growing number of States have granted legal status to natural entities. First, this paper looks at case studies to determine how this trend has emerged in individual Nations, be it through extensive litigation as seen in New Zealand, a court decision as seen in India, or through the restructuring of a legal system as seen in Ecuador. Next follows a discussion of legal tools that have been used and their accomplishments, especially through lawsuits in Ecuador, as well as legal work that could be accomplished in New Zealand. After, this essay looks at how the idea …

Using Machine Learning On Legal Matters: Paying Attention To The Data Behind The Curtain, Robert Keeling, Rishi Chhatwal, Nathaniel Huber-Fliflet, Jianping Zhang, Haozhen Zhao

UC Law Science and Technology Journal

No abstract provided.

Masthead

Hastings Journal of Crime and Punishment

No abstract provided.

Non-Legislative Rules Need Scrutiny Too: The Curious Case Of The Appropriate Care Standard, Ryan Mitchell

UC Law Environmental Journal

No abstract provided.

A Solution To Plastic Pollution? Using International Law To Shape Plastic Regulation In The United States, Allyssa Rose

UC Law Environmental Journal

The single-use plastic bag has become a prolific symbol of plastic pollution across the world. These convenient, lightweight bags may clog drainage systems or become a lethal snack for animals when not recycled properly. Due to the social and environmental harms caused by these bags, countries across the world have implemented legislation to tax plastic bags, or in some cases, ban their use all together. This paper seeks to identify the difference in approaches used by the Global North and Global South to determine the best approach for the United States to implement. Zealous advocacy on behalf of the plastics …

Applied Artificial Intelligence In Modern Warfare And National Security Policy, Brian Seamus Haney

UC Law Science and Technology Journal

Artificial Intelligence (AI) applications in modern warfare have revolutionized national security power dynamics between the United States, China, Russia, and the private industry. The United States has fallen behind in military technologies and is now at the mercy of big technology companies to maintain peace. After committing $150 billion toward the goal of becoming the AI technology world leader, China claimed success in 2018. In 2019, Chinese researchers published open-source code for AI missile systems controlled by deep reinforcement learning algorithms. Further, Russia’s continued interference in United States’ elections has largely been driven by AI applications in cybersecurity. Yet, despite …

Masthead

UC Law SF International Law Review

No abstract provided.