Vol. 98, Postscript Archives – 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.

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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.

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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.

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(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.

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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.

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