Postscript Archives – Page 2 of 11 – Southern California Law Review

The Care Act: A System of Coercion Masquerading as One of Compassion

September 2025September 2025Julia Beauchemin*

Against the bleak backdrop of a cold November afternoon in San Francisco, Erica Stone faces a heart-wrenching dilemma. Her twenty-eight-year-old daughter, Monica, has been battling schizophrenia-induced psychosis since she was sixteen. Homeless and living just north of Market Street, Monica adamantly rejects her mother’s offers of psychiatric hospitalization, as she has done on many past occasions. Gripped with anxiety over her daughter’s safety, Monica’s refusal to seek treatment weighs heavily on her mind.

In years past, Erica would have been forced to return home after leaving Monica food and a sleeping bag, heart heavy with her daughter’s continued refusal to accept treatment, yet without any available recourse. However, a recent development in California’s mental health legislation has reshaped this narrative. As of December 1, 2023, the Community Assistance, Recovery, and Empowerment (“CARE”) Act grants Erica the ability to petition Monica into court-ordered treatment.¹ Now fully implemented across all fifty-eight California counties, the Act establishes a network of civil CARE Courts that can order those suffering from schizophrenia and related psychotic disorders into treatment programs at the community level.²

Once Erica submits a petition on Monica’s behalf, affirming her eligibility for the CARE program as an individual with untreated schizophrenia, the petition undergoes evaluation by a CARE Court.³ For Monica to qualify for assistance through the CARE Act, the court must find that Monica is unlikely to survive safely in the community without supervision or that she is a threat to herself or others without support.⁴ If the court finds either of these to be true, the Act empowers the court to create a “Care Plan” for Monica that lasts up to twelve months, with the possibility to extend the plan for an additional year.⁵ This Plan may include provisions necessitating Monica’s relocation to emergency housing, mandatory participation in behavioral health treatment, and court-ordered stabilization medications.⁶

Created with the goal of connecting Californians suffering with schizophrenia and other related psychotic mental illnesses with treatment “before they end up cycling through prison, emergency rooms, or homeless encampments,” the CARE Act promises to advance upstream diversion from more restrictive conservatorships or incarceration.⁷ However, if Monica fails to comply with her CARE program, she may be referred to conservatorship proceedings with a new factual presumption that no suitable alternatives to conservatorship are available.⁸

This Note explores the implications of the CARE Act on California’s existing mental health landscape, while also pointing out certain deficiencies in the Act as it exists today. Part I of this Note explores the inner workings of the CARE Court framework, as well as the grounds for challenging a law as “vague” under the Due Process Clause of the Fourteenth Amendment. Part II argues that the CARE Act’s current eligibility criteria are unconstitutionally vague and are thus likely to result in arbitrary and discriminatory court enforcement. Part III goes on to propose possible amendments to the CARE Court framework that aim to protect against these potentially speculative and arbitrary judicial determinations. Part IV acknowledges the inherent limitations of these proposed amendments within the broader context of systemic change while underscoring the short-term necessity of these amendments in defending individuals’ due process rights.

View Full PDF

Reviving Public Nuisance as a Vehicle for Reducing Gun Violence

May 2025May 2025Jackson Kushner*

This Note defends the viability of state public nuisance statutes that seek to hold gun industry members liable for gun violence. This goal is based on a least cost avoider theory: gun industry members are in the best position to avoid the significant costs of gun violence; thus, subjecting them to liability is the best chance we have to effectively mitigate the problem (short of an outright ban, which, under the Court’s Second Amendment jurisprudence, is unconstitutional).

Public Nuisance Firearm Laws (“PNFLs”) face both a statutory and a constitutional challenge. The statutory challenge comes from the Protection of Lawful Commerce in Arms Act (“PLCAA”), which shields gun industry members from most “general” tort claims. However, the PLCAA expressly provides an exception for “predicate statutes”—that is, state statutes creating a cause of action that specifically targets gun industry members for the purpose of reducing gun violence. I argue that PNFLs count as predicate statutes under this exception, and thus they avoid the statutory challenge.

The second challenge is the Second Amendment, which, under the most recent Supreme Court decision in Bruen, requires states attempting to regulate firearms to show an analogue for their regulation in the historical tradition of American gun regulation. I make two arguments that PNFLs can withstand Second Amendment scrutiny. First and most importantly, the Supreme Court has unequivocally held that the Second Amendment protects an individual’s right to keep and bear arms for purposes of self-defense, not any rights of gun industry members. Thus, at least under the current jurisprudence, the Second Amendment does not directly apply to PNFLs. My second argument is that, regardless of whether the Second Amendment applies, PNFLs can pass the historical analogue test because there is a long tradition of using public nuisance against the use, sale, and storage of firearms and firearm-related materials.

View Full PDF

Liberty Before Party: The Courts as Transpartisan Defenders of Freedom

May 2025May 2025Yunsieg P. Kim*

Like many legislative acts in the United States, election laws are subject to judicial review, often by unelected judges with life tenure. This precipitates what Jacob Eisler calls the counterpopular dilemma. If the laws governing self-rule are dictated by courts that are unaccountable to the people—in the case of Article III judges, by design—they intrude upon democratic autonomy. But without arbiters who are resistant to popular pressure, elections can end up facilitating a mob rule or a tyranny in democratic disguise by enabling elites to manipulate democratic procedures for their own political gain. How, then, can judicial review of election laws be reconciled with democratic self-government?

Eisler’s book, The Law of Freedom: The Supreme Court and Democracy, provides a novel understanding of, and solution to, the counterpopular dilemma. According to Eisler, the counterpopular dilemma “is intractable” if the judicial role in elections is understood in conventional terms: “uniquely positioned outside typical political struggles, and thus especially well-suited to guarantee fair elections.” Instead of limiting freedom, courts should be viewed as advancing freedom, in two conflicting forms. The egalitarian view of freedom “seeks to afford all constituents equal opportunity to freely participate in self-rule.” Thus, the egalitarian view “demands some ‘levelling’ of inequities” that influence elections by, for example, limiting campaign spending. The libertarian view “prioritizes protecting individuals from state intrusion.” Thus, the libertarian view is that “state regulation of campaign finance . . . interfere[s] with personal liberty.” By casting the Supreme Court’s election law jurisprudence as a debate over how best to advance constituent freedom, Eisler provides a much-needed understanding of the Court as an institution in service of a common good—at a time when voters see it as motivated by political expediency, and rising public contempt is becoming an existential threat to judicial authority. I argue that, for Eisler’s theoretically illuminating perspective to become an operationally useful framework for delineating the courts’ role in elections, it must provide an objectively discernible standard for what constitutes a “minimal,” and thus tolerable, counterpopular intrusion into electoral design.

View Full PDF

(Un)Safe and (In)Effective: Preemption, Deference, the FDA, and the Opioid Crisis

April 2025April 2025Sophia Harrison*

The Food and Drug Administration (“FDA”) is tasked with keeping prescription drugs safe and effective for the American people. The FDA has long enjoyed deference in its decision-making because of the ambiguity in its organic statute, the Federal Food, Drug, and Cosmetic Act (“FDCA”). Gaining FDA approval for prescription drugs, however, is not a rubber stamp that frees a drug manufacturer from liability. Prescription drug manufacturers, such as opioid manufacturers, have been unsuccessful in convincing courts to use the concept of federal preemption and deference—specifically FDA approval and therefore judicial deference to that approval—to shield them from liability from state law claims against the distribution of these drugs. With the fall of Chevron deference in June 2024, it is unclear if the FDA will still enjoy the deference it has received, potentially leading to the promulgation of litigation against the FDA for (un)safe and (in)effective drugs. This Note examines the evolution of litigation against prescription drug manufacturers, specifically opioid manufacturers, by analyzing the difficult-to-meet standard of federal preemption under the FDCA. It then examines the history of deference to the FDA under Chevron by using the FDA approval and regulation of opioids as a case study. Lastly, it predicts how the overruling of Chevron by Loper Bright Enterprises v. Raimondo will impact the prescription drug landscape—ranging from circuit splits, to changes in the FDA structure, to even a floodgate of ligation against the FDA itself.

View Full PDF

When an Indicted Candidate Wins the Presidency: What Happens to the Trials if Donald Trump Wins the Election?

October 2024October 2024Claire Finkelstein* & Richard Painter†

For the first time in U.S. history, one of the two leading candidates for President is a convicted felon and is in the middle of multiple criminal trials on other charges in both state and federal courts. This set of unprecedented circumstances raises a series of urgent legal questions of first impression, particularly in the case in which Donald Trump wins the election. Three questions in particular require urgent examination in the run-up to the 2024 presidential election, and potentially in the immediate post-election period, depending on the outcome. First, with regard to the federal charges prosecuted by the Department of Justice, does the Department’s fifty-year-old policy of never indicting a sitting President apply to a previously indicted individual who is elected President after indictment and in the middle of ongoing criminal trials? Second, if the Department of Justice’s policy does not block continuing with the prosecution, would the President’s usual right of removal apply to allow him to fire Special Prosecutor Jack Smith or otherwise use the President’s control of the Department to effectively end the two federal criminal cases against him? And third, with regard to state prosecutions, how protected would each of these state processes be in the face of claims of federal preemption and arguments of executive privilege, immunity, and authority? Could the State of New York proceed to sentence Trump for his felony convictions and potentially imprison him? Could Georgia prosecutors encumber the presidency by insisting on taking their case against him to trial? In answering each of these questions this Essay considers constitutional history, caselaw on presidential immunity (including the Supreme Court’s recent decision in Trump v. United States), and the implications for the rule of law—and hence for the longevity of U.S. democracy—if a sitting President is effectively above the law.

View Full PDF

California Code of Civil Procedure Section 998: An Offer to Compromise Between the American and English Rules for Fee-Shifting?

September 2024April 2025Jaime Fong

Imagine you bring a personal injury claim seeking damages of $950,000. At the end of trial, the jury finds the defendant negligent and awards you $375,000. Although you prevailed at trial, the court orders you to pay a portion of the defendant’s litigation costs. Accordingly, you lose your entire award and are required to provide an additional payment of $18,000 to the defendant. If you are confused by this hypothetical situation, you are not alone. This seemingly backwards scenario is made possible by California Code of Civil Procedure section 998 (“section 998”),¹ a cost-shifting statute that has perplexed California litigators for decades.

When it comes to the determination of which party is responsible for paying legal fees in a litigation, there are two prominent models: the “English rule” and the “American rule.”² The majority of the Western world implements the English rule,³ which embodies a loser-pays system in which litigation costs, including attorney’s fees, are shifted to the losing party.⁴ Conversely, in America, absent bad faith or a statutory or contractual provision to the contrary, the general rule is no fee-shifting.⁵ In other words, unless a lawsuit involves bad faith, a contractual dispute and the contract at issue contains a fee-shifting provision, or a statute that provides for recovery of costs, each party bears their own litigation costs, irrespective of the outcome.⁶

Each model has its pros and cons. On the one hand, a loser-pays system—the English rule—discourages nuisance litigation and promotes settlement, but may subsequently reduce access to litigation,⁷ even for those with meritorious claims.⁸ Conversely, a system that does not generally allow for fee-shifting—the American rule—enables individuals to have their fair day in court, avoiding the English rule’s “potential chilling effect on meritorious litigation.”⁹ The American rule, however, may subsequently decrease the likelihood of settlement and open the door for increased nuisance litigation, which may overwhelm court systems.¹⁰

Because the American rule may lack distinct incentives for parties to settle or to refrain from bringing frivolous claims that create a backlog in courts, the American justice system has devices to encourage parties to settle their claims and resolve disputes as quickly and efficiently as possible. One such device includes offer-of-judgment rules: a type of fee-shifting statute that provides an exception to the general rule against fee-shifting. Offer-of-judgment rules are offer-based fee-shifting rules that allocate costs according to pretrial settlement offers.¹¹ Thus, under an offer-of-judgment rule, if a litigant rejects a pretrial settlement offer and subsequently receives a less favorable judgement at trial, they must compensate the offeror for certain post-offer costs.

Section 998 is California’s offer-of-judgment rule. Section 998 is a cost-shifting statute designed to encourage settlement of litigation, without the need for a trial, by shifting certain costs to a party that rejected a 998 “offer to compromise” from their opponent and subsequently failed to obtain a better result at trial.¹² The California legislature and courts have made clear that the fundamental policy behind section 998 is to encourage the settlement of lawsuits prior to trial. However, statutory and case law analyses may indicate that 998’s policy also encompasses promoting settlement without unduly limiting access to courts.

The effectiveness of section 998 remains an ongoing debate among civil litigators. Application of section 998 is exceedingly difficult to understand and there is concern that it may not offer a high enough incentive to settle since the statute allows only a limited amount of recoverable costs. On the other hand, even if section 998 does not result in settlement as frequently as anticipated, it is a beneficial tool that provides a financial incentive for parties to settle that might not otherwise exist. As the debate over section 998’s efficacy continues, the California legislature and courts will likely be increasingly confronted with proposed amendments and judicial disputes over its applicability. Accordingly, in the future, these state actors may wish to consider how section 998 may be a powerful vehicle to relieve overburdened courts without overly deterring claimants from protecting their rights or interests.

This Note considers the extent to which section 998 can genuinely be considered a compromise between the English and American rules for fee-shifting, rather than just a tool to promote settlement. In particular, this Note asks whether section 998 seeks to promote settlement without unduly limiting access to courts, and if so, to what extent.. Although section 998 may be used in trial and arbitration,¹³ this Note focuses on section 998 in the context of litigation and trial. To help inform this Note’s discussion of the underlying policy tradeoffs behind different fee-shifting rules and the significance of promoting settlement prior to trial, Part I provides an overview of the mechanics, principal stages, and costs of civil litigation. Part II discusses section 998 relative to the competing models of the English rule and the American rule, including general policy tradeoffs and impact on litigation strategy. Part III provides an overview of the statutory framework of section 998 and its underlying policy considerations. Part IV examines section 998 legal developments and whether if, and to what extent, judicial determinations are not only promoting section 998’s purpose of encouraging settlements but also doing so without unduly limiting access to courts. A conclusion with final considerations follows.

View Full PDF

Nothing Comes from Nothing: Andy Warhol and the Inadequacy of the Fair Use Analysis of Contemporary Art

June 2024April 2025Kristen Park

Andy Warhol looms large—not just within the ivory tower of contemporary visual arts, but in American culture. To many, his colorful silkscreen portraits of such celebrities as Marilyn Monroe or Elizabeth Taylor are paradigmatic of contemporary art. Yet, despite the near-universal reach of his work and his significant celebrity in his own right, the theoretical and conceptual underpinnings of his work remain less accessible to casual viewers.

In 1984, Lynn Goldsmith, a celebrity portrait photographer, licensed a 1981 photograph she took of the musical artist Prince (the “Goldsmith Photograph”) to Vanity Fair Magazine for use as an artist reference in an illustration that appeared twice in the magazine, with attribution back to Goldsmith for the “source photograph.”¹ Vanity Fair hired Andy Warhol to create a silkscreen portrait of Prince based on the Goldsmith Photograph to accompany an article about Prince’s music and newfound celebrity. Unbeknownst to Goldsmith until she discovered “Orange Prince,” an orange silkscreen portrait of the singer, on the cover of Condé Nast’s posthumous tribute to Prince in 2016, Warhol created fifteen additional works based on her photograph (the “Prince Series”) before his death. Goldsmith sued for copyright infringement, and the district court for the Southern District of New York (the “Warhol district court”) initially found the Prince Series was transformative and granted summary judgment to the Andy Warhol Foundation for the Visual Arts (“AWF”) on its fair use defense. The Second Circuit reversed upon concluding that each of the four statutory fair use factors² weighed in favor of Goldsmith. The Supreme Court granted certiorari to examine the first fair use factor, ultimately finding in a 7-2 decision that the first factor favored Goldsmith and counseled against fair use because the purpose of Orange Prince was substantially the same as the Goldsmith Photograph and AWF’s licensing of Orange Prince to Condé Nast’s special issue commemorating Prince was of a commercial nature.³ Justice Kagan, joined by Chief Justice Roberts, penned a sharply-worded dissent in defense of Warhol’s transformative use of his source material, accusing the majority of leaving the Court’s first factor inquiry “in shambles”⁴ and “our world poorer.”⁵

Warhol’s fame complicates the fair use analysis in the case at hand (“Warhol”) because it raises questions of “celebrity-plagiarist privilege”⁶ and how the Supreme Court’s ruling may influence less established artists in future copyright suits. The Warhol district court and the Second Circuit, amici for both parties, and Supreme Court Justices have all debated the proper role, or the absence thereof, that Warhol’s fame might play in the Court’s analysis of whether Orange Prince could be protected as fair use of the Goldsmith Photograph. Despite the fact that this case is far from the first time Warhol’s appropriation of photographs for his silkscreen work has embroiled him in copyright disputes with the photographers of the underlying works (most disputes were settled out of court),⁷ this case promised to be of unprecedented significance because of the myriad of ways in which Warhol epitomizes the challenges that appropriation art,⁸ and the contemporary visual arts more broadly, have historically posed for the fair use doctrine.

The task of formulating a clear standard for evaluating fair use in cases involving appropriation art has only become more challenging in our digital age, in which the use of appropriation in art is no longer limited to the “relatively small segment of creators who practice ‘appropriation art.’ ”⁹ The practice of copying has become “both the topic of contemporary art and its technique” and “now permeates art in an extraordinarily diverse range of ways.”¹⁰ Accordingly, Warhol represented a crucial opportunity for the Supreme Court to tailor a more specialized and better-informed standard of fair use in the context of the conceptual visual arts so that the fair use doctrine may continue to evolve alongside advancements in the arts.

This Note proposes that the Supreme Court should have vacated and remanded Warhol to the district court to supplement its evaluation of the first and fourth fair use factors with an evidentiary analysis of the perspective of an art market consumer or magazine editor. Part I of this Note offers an overview of the legislative intent of the fair use defense and the four statutory factors, then traces subsequent articulations of the doctrine in U.S. fair use jurisprudence. Part II discusses the issues of scope and incompatibility that arise from the fraught application of the Second Circuit’s analysis of “transformativeness” under the first factor to conceptual art. Part III explores how adapting the substantial similarity analysis to fair use by allowing courts to consider the perspective of the art market consumer under the first and fourth factors can contribute to a more equitable and informed application of the fair use doctrine.

View Full PDF

Social Media Censorship: Is It Protected by the First Amendment?

April 2024April 2024Daniella Moretti

The Internet has become an indispensable tool that many rely on for information, marketing, commerce, and connections. The wide-reaching data accessible by a quick Google search retrieves information that would otherwise take days to find in a library. Society has become greatly dependent on this access to information, allowing individuals to “make quicker, more-informed decisions”¹ and “connect [with] anything or anyone at any given moment.”² However, “[o]ur greatest strength can also be our greatest weakness, and our human relationship with technology is a classic testament to that.”³

Social media platforms have grown immensely over the past decade, with many using social media as their primary source to learn about current events and breaking news.⁴ A study conducted in 2020, at the height of the COVID-19 Pandemic and the U.S. presidential election, revealed that a staggering 53% of adults in the United States use social media as their news source either “often” or “sometimes.”⁵ With Facebook being the most popular, a subset of 36% of Americans regularly use the site to learn about news, out of a total of 68% of Americans who are on Facebook generally.⁶ With X (formerly known as Twitter) closely behind, 15% of Americans regularly refer to the site as their news source, out of a total of 25% of Americans registered on X generally.⁷

Social media platforms are owned and operated by private entities that currently have full control over the implementation of algorithms and other content-moderation policies.⁸ Due to the influential role of social media, especially with younger generations,⁹ there has been increased tension regarding a state’s ability to regulate the interaction between platforms and their users through content moderation.¹⁰ Platforms are resisting state intervention by asserting First Amendment claims, stating that platforms have a right to free speech and that content-moderation decisions are equivalent to protected speech.¹¹ Currently, there is a circuit split between the U.S. Court of Appeals for the Fifth and Eleventh Circuits addressing this issue, in which Florida and Texas enacted statutes that placed major restrictions on social media platforms’ ability to freely censor or moderate content.¹² Specifically, both statutes include nondiscrimination provisions, in addition to other disclosure provisions, that would prohibit platforms from censoring based on viewpoint. The key tension arises between the purported First Amendment rights of the private entities that run social media platforms and the ability for users to express and be exposed to diverse viewpoints through “one of the most important communications mediums used in [the] [s]tate[s].”¹³

Both Florida and Texas argue that the statutes prohibiting viewpoint discrimination are constitutional because they do not restrict protected speech, and even further, that platforms should be subjected to common carrier obligations.¹⁴ The plaintiffs, representing large social media platforms, instead argue that content-moderation decisions require the use of editorial judgment,¹⁵ which has been interpreted as protected speech in past cases.¹⁶ The importance of providing meaningful restrictions on platforms’ censorship policies has become even more evident with the recent acquisition of X, exemplifying that a change in management in such relied-on commodities could potentially be devastating to the access of information.¹⁷ Due to the increased uncertainty regarding the status of the law and the importance of providing direction and uniformity on interpreting the Constitution,¹⁸ a petition for a writ of certiorari was filed by Texas and granted by the Supreme Court. Opening briefs were filed on November 30, 2023, and oral argument occurred on February 24, 2024.¹⁹

One of the main difficulties in resolving this issue is the continuum of control and expression that platforms exert when moderating content. This Note will argue that the ultimate determination of whether moderation decisions rise to protected speech will be fact dependent. Platforms that lack a clear target audience and only censor objectively obscene content (rather than subjective beliefs) do not convey a message through their content moderation that amounts to protected speech. Most large platforms, such as X, Facebook, Instagram, and TikTok²⁰ would be included within this category. Conversely, this Note will argue that platforms that clearly moderate content based on political or other personal beliefs, and express these choices with their users, will have First Amendment protections as the moderation expresses a message equivalent to speech. By conveying subjective viewpoints through a platform’s content moderation, potential users can make informed decisions about whether to opt-in to the platform’s services. Groups that fall within this second category include Vegan Forum, ProAmerica Only, and Democratic Hub.²¹

Alternatively, with a view on consistency and the best overall policy outcome, there is an argument that Congress should designate social media platforms as common carriers in order to regulate this area similarly to the telecommunications industry.²² This Note primarily provides a doctrinal analysis of common carrier law and editorial judgment and applies the analysis to the conflicting arguments raised in the circuit-split cases. While the current debate is highly politicized, with the perceived motive of the Florida and Texas statutes to stop platforms from censoring conservative views,²³ this Note argues that analyzing these issues with a neutral, doctrinal-focused lens will provide a positive long-term solution.

Part I of this Note will establish an example of a current content-moderation policy exercised by a large social media platform. Part II will provide a doctrinal analysis concerning First Amendment law, specifically referring to the development and current state of “common carriers” and “editorial judgment.” Part III will identify the state and federal statutes that underly the circuit-split litigation. Part IV will discuss the facts and the conflicting rationales of the current circuit-split cases. This Note will also highlight the most persuasive arguments and their application to the doctrinal analysis of First Amendment law provided in Part II. Then, Part V will speak to the significance of resolving this issue and how it will affect social media platforms, states, and the greater community. A conclusion will follow.

View Full PDF