Towards Defensible Judge-Made Democratic Process
What is the function of judicial review? By the stated lights of Article III (“cases” and “controversies”), to individual judges
Litigation Finance in the Market Square
Litigation finance is the subject of a contentious scholarly and policy debate. Litigation funders provide capital to litigants or law
A New Look at Old Money
Taxing wealth—including inherited wealth—is a hot topic, making headlines and generating heated debate. Should millionaires and billionaires face an annual
Major Questions Avoidance and Anti-Avoidance
In recent years, the Supreme Court has articulated a new “major questions” doctrine that prescribes a heightened standard of judicial
The Supervisory Power of State Supreme Courts
State supreme courts are currently center stage as they face some of the most important issues of our time. But
Respecting Listeners’ Autonomy: The Right to be Left Alone
Introduction The core of First Amendment free speech doctrine concerns the right of speakers to convey the message of their
Listening on Campus: Academic Freedom and Its Audiences
Introduction Current debates about campus speech often conflate two related but importantly distinct values: free speech and academic freedom. Both
First Amendment Governance: Social Media, Power, and a Well-Functioning Speech Environment
Introduction In Moody v. NetChoice, LLC, the Supreme Court declared, in a majority opinion by Justice Kagan, that “it is
Listeners’ Choices Online
The most useful way to think about online speech intermediaries is structurally: a platform’s First Amendment treatment should depend on
Islands of Algorithmic Integrity: Imagining a Democratic Digital Public Sphere
Introduction A class of digitally mediated online platforms play a growing role as the primary sources of Americans’ knowledge about
In the Name of Accountability
Introduction The Supreme Court has increasingly embraced legal doctrines that empower elected officials to hide politically inconvenient information and ideas
Fear and Free Speech
INTRODUCTION Fear changes lives. And for this reason, fear sometimes changes the law. Because of fear’s debilitating effects, the law
Remarks on Academic Freedom and Free Speech: Reflections on Blocher
Joseph Blocher’s article is a rich contribution to our thinking about campus speech. It takes the academic endeavor seriously—both for
Pluralism and Listeners’ Choices Online
“The plain, if at times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of
Unchosen Listening
INTRODUCTION A century of developments in communications technology has done wonders for listeners. In the not-so-distant past, the listener had
The First Amendment of Fear
Introduction Fear can be a powerful silencer. Speakers may be thwarted not only by direct force but also when they
Protecting Listeners From Unwanted One-to-One Speech
The Value of the One-to-One vs. One-to-Many Line “[N]o one has a right to press even ‘good’ ideas on an
Fintech and Techno-Solutionism
Silicon Valley–style technological innovation is ill-suited to address complex problems like financial inclusion and concentrated market power, yet promises abound
Fair Use and Fair Price
In this Article, we present and develop a new justification for the fair use doctrine. The accepted lore among copyright
Mind the Gap(s): Mitigating Harassment in a Post-#METOO Workplace
In a post-#MeToo workplace, harassment remains pervasive, and harassment law still fails to provide protection for the harms experienced by
Familial DNA and Due Process for Innocents
Ever since genealogical DNA unmasked the Golden State Killer in 2018, the use of this new forensic science has been
The Default Rule and Due Process: Diverging Interpretations of “The Charging Document” Requirement in Extradition Treaties
INTRODUCTION The United States is a party to over one hundred bilateral extradition treaties with foreign governments. These treaties allow
A Whole-of-Government Approach to Protect Unaccompanied Children from Labor Exploitation
A sharp rise in illegal child labor and an influx of unaccompanied migrant children into the United States combined to
Criminalization: An Exceptionally American Response to Homelessness
This Note analyzes the recent trend of criminalizing homelessness in the United States. The first half discusses homelessness through the
Eighth Amendment Stare Decisis
In 2008, the United States Supreme Court decided Kennedy v. Louisiana, holding that the Eighth Amendment barred death sentences for
Property and Prejudice
“Alien land laws”—laws restricting noncitizens from owning real property—are back. A dozen states have enacted such laws during the past
The Embodiment of Sovereignty: Outrages, Section 1983 Litigation, and the Federalism Revival
A remarkable number of canonical Section 1983 cases and many other less well-known civil rights cases involve extraordinary violence—brutality that
Getting a Bad “Wrap”: An Analysis of Online Contract Cases in California After Step-Saver and ProCD
Consumers routinely enter contracts when engaging in online commerce. Such “contracts of adhesion” are created by sellers and provide no
Transforming Special Education Litigation: The Milestone of Perez v. Sturgis Public Schools
In March 2023, the Supreme Court issued a landmark decision in Perez v. Sturgis Public Schools, which held that individuals
Meme Corporate Governance
Can retail investors revolutionize corporate governance and make public companies more responsive to social concerns? Beginning in 2021, there was
Common Heritage as Public Trust: A Property Law Approach to Managing Resources Beyond National Jurisdiction
The search for rare minerals is taking us well beyond the bounds of national jurisdiction, and international law is struggling
Rethinking Tax Information: The Case for Quarterly 1099s
When an electricity provider wants customers to pay their bills monthly, it sends them a bill each month. Yet, this
Public Protest and Governmental Immunities
This Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental
The Failed Promise of Treasuries in Financial Regulation
U.S. government Treasury bonds (“Treasuries”) anchor financial stability. Public regulation mandates that financial firms maintain deep buffers of Treasuries that
War and Coercion
Compelled service in hostile forces is prohibited by International Humanitarian Law. In the context of an international armed conflict, it
Housing Gridlock
The housing crisis dominates much of political and economic life, and it is driven in large part by a lack
Major Questions, Common Sense?
The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning
Major Questions, Common Sense?
The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning
Housing Gridlock
The housing crisis dominates much of political and economic life, and it is driven in large part by a lack
War and Coercion
Compelled service in hostile forces is prohibited by International Humanitarian Law. In the context of an international armed conflict, it
The Failed Promise of Treasuries in Financial Regulation
U.S. government Treasury bonds (“Treasuries”) anchor financial stability. Public regulation mandates that financial firms maintain deep buffers of Treasuries that
Filtered Dragnets and the Anti-Authoritarian Fourth Amendment
Filtered dragnets are digital searches that identify a suspect based on the details of a crime. They can be designed
Oceanic Impunity
Ocean protection is essential to avoid climate disaster. Phytoplankton, seaweeds, and sea grasses produce more than half of Earth’s oxygen—exceeding
When Doctors Become Cops
The lines between law enforcement and health care are blurring. Police increasingly lean on doctors to provide them with genetic
“Bob Jones University” in the 21st Century: An Examination of Charitable Tax-Exempt Status and Religious Exemption from Title IX for Religious Colleges That Discriminate Against LGBTQ+ Students
INTRODUCTION On March 30, 2021, the Religious Exemption Accountability Project (“REAP”) filed a historic class action lawsuit with the goal
Slouching Towards San Francisco: Opioid Addiction as Public Nuisance
INTRODUCTION The opioid epidemic has afflicted Americans for twenty years, from California to the New York island. What began as
Regressive White-Collar Crime
Fraud is one of the most prosecuted crimes in the United States, yet scholarly and journalistic discourse about fraud and
The Discriminatory Religion Clauses
The Supreme Court’s decision in Carson v. Makin is the third in a trilogy of cases dramatically upending the meaning
Corporate Social Responsibility Through Shareholder Governance
New approaches to corporate purpose have emerged in recent years that hold out the promise of addressing concerns about corporate
Auditor Independence: Moving Toward Harmonization or Simplification?
INTRODUCTION Auditor independence has been a priority for the Securities and Exchange Commission (“SEC”) under the leadership of both the
Miss-Stake by IRS: Proof-of-Stake’s Underinclusive Regulatory Guidance
Death and taxes are the two certainties of life, and for some, the former may be more conceptually pleasant than
The Federal Reserve and the Constitution
In a number of important cases restricting the authority and independence of federal agencies, the Supreme Court’s conservative majority has
Judging Firearms Evidence
Firearms violence results in hundreds of thousands of criminal investigations each year. To try to identify a culprit, firearms examiners
“Shelby County” to Clean Air Act: Evaluating the Constitutionality of California’s Clean Air Act Waiver Under the Equal Sovereignty Principle
In August 2022, California promulgated the Advanced Clean Cars II regulation, banning all sales of new gasoline-powered cars in the
Restraining the Second Amendment in the Era of the Individual Right: Adopting a Modified South African Gun Control Model
In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a novel historical test for judging
Perfecting the Judicial Peremptory Challenge: A New Approach Using Preliminary Data on California Judges in 2021
Even the most carefully planned and genius strategies are pointless without an assumption of fairness: chess depends on a fair
Democracy Dies in Silicon Valley: Platform Antitrust and the Journalism Industry
Newspapers are classic examples of platforms. They are intermediaries between, and typically require participation from, two distinct groups: on the
Life Story Rights Litigation: Negotiating for a Happy Ending
Filmmakers, television writers, and authors alike have made millions of dollars in the entertainment industry by telling stories that have
Taxing Guns
Policymakers across the nation have recently adopted new taxes on guns. As expected, these policies are controversial. Supporters believe the
Transgender Rights & the Eighth Amendment
The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects
Designing Supreme Court Term Limits
Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it
Voting and Campaign Financing: Inconsistencies in Law and Policy
The right to vote in elections and the right to spend[1] in elections are both historicallyrevered rights that function as critical
Labor’s New Localism
Millions of workers in the United States, disproportionately women, immigrants, and people of color, perform low-paid, precarious work. Few of
Detention, Disenfranchisement, and Doctrinal Integration
On any given day, approximately 2.3 million individuals are incarcerated, many of whom are eligible voters and are disproportionately people
Closing International Law’s Innocence Gap
Over the last decade, a growing number of countries have adopted new laws and other mechanisms to address a gap
Small Fines and Fees, Large Impacts: Ability-to-Pay Hearings
Imagine, for example, that a woman fails to have auto insurance,[1] which carries a minimum fine of $500 in Massachusetts.[2]
Overturning Override: Why Executing a Person Sentenced to Death By Judicial Override Violates the Eighth Amendment
INTRODUCTION Judicial override is a practice by which a judge overrules a sentence decided by a jury. Perhaps the most
Crack Taxes and The Dangers of Insidious Regulatory Taxes
An unheralded weapon in the War on Drugs can be found in state tax codes: many states impose targeted taxes
The Role of State Attorneys General In Improving Prescription Drug Affordability
Impact litigation initiated by state attorneys general has played an important role in advancing public health goals in contexts as
Provisional Assumptions
In courtrooms, the law often asks individuals to ignore information—carefully, purposely—that otherwise feels important. Juries, for example, are often asked
A Closer Look at the PTAB Operation
Prior to the passage of the America Invents Act (“AIA”) in 2011,[1] allegedly low-quality patents were allowed to proliferate. Many
Divided Agencies
Clashes between presidential appointees and civil servants are front-page news. Whether styled as a “deep state” hostile to its democratically
The Social Context of the Law: A Critical Analysis of Reliance Interests in the Department of Homeland Security v. Regents of the University of California
In 2020, the U.S. Supreme Court ruled on the Department of Homeland Security v. Regents of the University of California case.
Dimensional Disparate Treatment
The Supreme Court’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Court’s
Say Yes to Her Redress: A Two-Step Approach to Post-Divorce Embryo Disputes
INTRODUCTION I can’t believe Taylor Swift is about to turn 30 – she still looks so young! It’s strange to
Without Exception? The Ninth Circuit’s Evolving Stance on Nondebtor Releases in Chapter 11 Reorganizations
INTRODUCTION Chapter 11 of the Bankruptcy Code (or the “Code”) allows a troubled business debtor the opportunity to restructure its
The Rise of Bankruptcy Directors
In this Article, we use hand-collected data to shed light on a troubling development in bankruptcy practice: distressed companies, especially
Cannon Fodder, or a Soldier’s Right to Life
In recent years, hundreds of American service members have died in training exercises and routine non-combat operations, aboard American warships,
Colorblind Constitutional Torts
Much of the recent conversation regarding law and police accountability has focused on eliminating or limiting qualified immunity as a
Who’s on the Hook for Digital Piracy? Analysis of Proposed Changes to the Digital Millennium Copyright Act and Secondary Copyright Infringement Claims
FBI Anti-Piracy Warning: The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without
The Agency Problem in SPACs: A Legal Analysis of SPAC IPO Investor Protections
The events that occurred in 2020 drastically altered the world’s financial markets,[1] contributing to an increase in Initial Public Offerings
Justice Breyer’s Friendly Legacy for Environmental Law
Environmentalists did not cheer President Bill Clinton’s decision in May 1994 to nominate then-First Circuit Judge Stephen Breyer to fill
Should Humanity Have Standing? Securing Environmental Rights in the United States
While courts around the world are increasingly recognizing rights of nature or the rights of individuals or communities to a
Standing for Rivers, Mountains—and Trees—in the Anthropocene
In his well-known article, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, Professor Christopher Stone proposed that courts grant
Fish, Whales, and a Blue Ethics for the Anthropocene: How Do We Think About the Last Wild Food in the Twenty-First Century
One of the lesser celebrated threads of Christopher Stone’s scholarship was his interest in the ocean—especially international fisheries and whaling.
Identifying Contemporary Rights of Nature in the United States
The Rights of Nature movement is at the precipice of watershed social changes. Leaders of this international, Indigenous-led movement call
Fractionalization to Securitization: How the SEC May Regulate the Emerging Assets of NFTs
Blockchain technology opened the world to a variety of new technological advances that reshaped the way humans interact and transact
Ditching Daimler and Nixing the Nexus: Ford, Mallory, and the Future of Personal Jurisdiction under the Corporate Consent and Estoppel Framework
While personal jurisdiction is intended to assess whether a defendant should be forced to defend a lawsuit in a location
Toward a New Fair Use Standard: Attributive Use and the Closing of Copyright’s Crediting Gap
A generation ago, Judge Pierre Leval published Toward a Fair Use Standard and forever changed copyright law. Leval advocated for the primacy
The Invention of Antitrust
The long Progressive Era, from 1900 to 1930, was the Golden Age of antitrust theory, if not of enforcement. During
Fifty Ways to Leave Your Lover: Doing Away with Separation Requirements for Divorce
Despite the evolution of no-fault divorces, which were intended to remove certain barriers to divorce and essentially make any divorce
Lenity and the Meaning of Statutes
Ordinary canons of statutory interpretation try to encode linguistic rules into jurisprudence. Their purpose is to figure out the meaning
Seeing and Serving Students with Substance Use Disorders Through Disability Law
The opioid epidemic has brought the immense harms of substance abuse to the fore of national attention. Despite a growing
Analyzing the Circuit Split Over CDA Section 230(E)(2): Whether State Protections for the Right of Publicity Should be Barred
INTRODUCTION In 2018, coworkers notified Karen Hepp, a newscaster and co-anchor for the local Fox affiliate’s morning news program Good
Affirmative Acting: The Role of Law in Casting More Actors With Disabilities (A Note in Five Acts)
SETTING THE STAGE: INTRODUCTION “Always find your light.” This is a common piece of advice given to theater artists,
Race and Politics: The Problem of Entanglement in Gerrymandering Cases
Gerrymandering—the manipulation of political districting processes and boundaries for partisan political advantage—has proven a troubling and difficult area of constitutional
Self-Defense Exceptionalism and the Immunization of Private Violence
After the high-profile trial of Kyle Rittenhouse, the parameters of lawful self-defense are a subject of intense public and scholarly
Suing SPACs
In 2020, the financial world became transfixed by a massive increase in the number of firms going public through special
Co-Creating Equality
When a creative work has many co-creators, not all of whom contributed equally, how should they split ownership? In the
The Limitations of Applying the Stored Communications Act to Social Media
The advent of social media has increasingly affected how people live and communicate. Millions of Americans use social media every
Battle of the Opinions: Conflicting Interpretations of False Opinions and the Falsity Standard Under the False Claims Act
Congress has let loose a posse of ad hoc deputies to uncover and prosecute frauds against the government . . . . [Bad actors] may
No More Time Left on the Clock: Name, Image, and Likeness as the End of the Line for Student-Athlete Compensation Under Antitrust Law
Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the
Personal Jurisdictional Limits Over Plaintiff Class Action Claims
Commentators describe recent Supreme Court decisions as changing the law, to require courts to examine the propriety of personal jurisdiction
Voting Rights in Corporate Governance: History and Political Economy
Political voting rights have become the subject of sharp legal wrangling in American political elections and the focus of headlines
Inflation, Market Failures, and Algorithms
Inflation is a problem of tremendous scale. But the leading response to inflation—raising interest rates—also poses economic risks. Raising interest
Delegating War Powers
Academic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars. And yet, every major U.S.
Filling the California Ninth Circuit Vacancies
At President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit faced ample vacancies that the United States Courts’ Administrative Office labeled “judicial emergencies” because of their protracted length and its huge caseload. Recent departures by Circuit Judge Stephen Reinhardt and former Chief Judge Alex Kozinski, who occupied California posts, and other jurists’ decision to change their active status mean that the circuit has five emergencies, three in California, because Trump has appointed only three nominees. The court also resolves the most filings least expeditiously.
Limited clarity about whether more judges will leave active service over Trump’s presidency suggests that additional confirmations may be necessary; however, the selection process’s stunning politicization will compromise this initiative. For example, when the tribunal enjoined Trump’s controversial determinations which excluded immigrants from seven predominately Muslim nations, he excoriated multiple jurists of the circuit. Trump afforded numerous candidates, but merely three have received approval, partly because home state Democratic politicians retained “blue slips” when the White House minimally consulted. The vacancies—which exceed seventeen percent, and three California openings, which are ten—show the crucial need to fill more vacancies.
Crushing Creativity: The Blurred Lines Case and Its Aftermath
On March 10, 2015, the music world was stunned when a jury in Federal District Court in Los Angeles rendered a verdict in favor of the heirs of Marvin Gaye against Pharrell Williams and Robin Thicke, who, along with rapper Clifford Harris, Jr., professionally known as “T.I.,” wrote the 2013 mega-hit song entitled “Blurred Lines.” The eight-member jury unanimously found that Williams and Thicke had infringed the copyright to Marvin Gaye’s “Got To Give It Up.” On appeal, the Ninth Circuit Court of Appeals affirmed the verdict and recently rejected Williams and Thicke’s Petition for Rehearing en banc.
The case is significant for a number of reasons. In typical music copyright cases—at least successful ones—the two works share the same (or at least a similar) sequence of pitches, with the same (or at least similar) rhythms, set to the same chords. The Blurred Lines case was unique, in that the two works at issue did not have similar melodies; the two songs did not even share a single melodic phrase. In fact, the two works did not have a sequence of even two chords played in the same order, for the same duration. They had entirely different song structures (meaning how and where the verse, chorus, etc. are placed in the song) and did not share any lyrics whatsoever.
Book Review: Law and Legitimacy in the Supreme Court by Richard H. Fallon, Jr.
Richard Fallon has written another important book about American constitutional law. Indeed, it brings to mind Hilary Putnam’s definition of a classic: the smarter you get, the smarter it gets. Fallon presents a rich, thick description of our constitutional law and practice and an argument for how we may best continue and improve this practice. While intended to be accessible to a broad readership, Fallon’s arguments cut to the core of much current constitutional scholarship, even while urging us to move past many of these sterile debates. Most importantly, Fallon takes seriously his mission of speaking to the Court, as well as to the academy, and takes a real run at changing how the Justices decide cases and articulate their decisions. He accomplishes all of this in a startlingly concise book, running only 174 pages of text and 36 pages of notes and without even a subtitle.
Fallon sets out to explain the nature of constitutional law, the constitutional disagreements of cases, constitutional argument, and the nature of the legitimacy of Supreme Court decisions and, ultimately, the Court itself. That’s a tall order for a little book, but Fallon can make a claim to have accomplished his mission.
Supreme Court Reform: Desirable—And Constitutionally Required
As decisions by—and appointments to—the Supreme Court have become increasingly divisive, many observers have renewed calls for reform. For example, we could replace lifetime tenure with non-renewable terms of eighteen years, such that one term ends every two years. That way, less would be at stake with each nomination, Justices could not time their retirements for partisan reasons, and appointments would be divided more evenly between Democratic and Republican presidents. Or we could establish a non-partisan, judicial nominating commission.
Concerns about the Supreme Court are not new, but increasing political polarization and partisan maneuvering over the two most recent Court appointments have accentuated tensions. With the legitimacy of the Court at stake, reform to depoliticize the Court seems essential. And whichever reform is promoted, it is generally assumed that implementation would require a constitutional amendment, legislation, or a change in Senate rules.
But the conventional wisdom is wrong. There is a sound argument to be made that Supreme Court reform is constitutionally required.
Profound Sophistication or Legal Sophistry?
In the midst of growing debate and—according to widely publicized news accounts—growing evidence against President Donald Trump’s impeachment, esteemed former Harvard Law Professor and public intellectual, Alan Dershowitz, recently published The Case Against Impeaching Trump. In this brief, but passionate, defense of the President, Professor Dershowitz provides arguably the strongest legal argument against impeaching the Forty-Fifth President of the United States. Professor Dershowitz’s argument, while beautifully written, is largely a selectively applied textualist attempt to thwart the mounting evidence against President Trump and his administration.
The Weintraub Principle: Attorney-Client Privilege and Government Entities
Amidst the backdrop of a federal investigation into the actions of President Donald Trump, a previously unexplored legal question has emerged on a topic that forms the foundation of legal practice: Can a succeeding government official revoke a predecessor’s claim of the attorney-client privilege? Although the question is novel, its role within the government context is well established—having been asserted by Presidents Richard Nixon and Bill Clinton in their respective administrations. The context of current events, however, underscores the need to further define the operation of a privilege that is once again being relied upon by a president under investigation.
Extraterritorial Enforcement of the Foreign Corrupt Practices Act: Asserting U.S. Interest or Foreign Intrusion?
This Article examines these questions through the lens of United States v. Hoskins, a recent Second Circuit case. Part I will provide background: Section I.A will discuss the circumstances that compelled Congress to pass the original FCPA, the FCPA’s subsequent amendments, and the controversy surrounding U.S. enforcement of the FCPA. Section I.B will provide a basic background of accomplice liability, the Gebardi principle, and subsequent interpretations of the Gebardi principle. Section I.C will briefly explain the presumption against extraterritoriality. Section I.D will provide a synopsis of Hoskins. Part II will argue that, as a matter of statutory interpretation and policy, the government should be allowed to prosecute accomplices to FCPA violations, even when they are beyond the extraterritorial reach of the FCPA’s principal liability. Section II.A will argue that the Hoskins Court misapplied the Gebardi principle and the presumption against extraterritoriality and that, as a matter of statutory interpretation, accomplice liability’s extraterritorial reach extends beyond those who can substantively violate the FCPA. Section II.B will argue that principles of international law allow the U.S. government to prosecute Hoskins. Section II.C will argue that expanded accomplice liability is necessary as a matter of policy. The conclusion will recommend that the Supreme Court take action and hold that accomplice liability is extended to foreign nationals that conspire with principal offenders of the FCPA, even if they cannot be held liable as principal offenders. It will also recommend that, in the absence of a Supreme Court decision, Congress should explicitly expand accomplice liability’s extraterritorial reach beyond the FCPA’s principal liability.
Judicial Overreach or a Necessary Check on Executive Power? The Implications of Trump v. Hawai’i and the Resulting Push Against Nationwide Injunctions
This Note will explain the constitutionality and legal scope of the executive order as a political tool of the president. It will then discuss the rise of nationwide injunctions and the judicial system’s changing attitudes toward such injunctions as a viable judicial tool. Next, it will explain the series of executive orders passed by President Donald Trump—which together constituted the Muslim ban—and the nationwide injunctions issued by district courts in response to these orders, culminating in the Trump v. Hawai’i Supreme Court decision. Finally, it will discuss the legislation for which Trump v. Hawai’i paved the way: The Injunctive Authority Clarification Act of 2018, which sought to prohibit courts from issuing nationwide injunctions.
Ultimately, this Note will argue that Trump v. Hawai’i was decided correctly, but that the consequences of the decision as they relate to expanding executive power and the case’s procedural history have serious implications for the future of judicial lawmaking. This Note will critically analyze arguments on both sides of the issue of whether nationwide injunctions should be prohibited. Additionally, this Note argues that while nationwide injunctions have positive effects, those effects are outweighed by the incentives they create for forum shopping and the judicial territorial clashes they create that undermine judicial decisionmaking. Finally, this Note argues that prohibiting nationwide injunctions entirely, as the Injunctive Authority Clarification Act would have done, is not the proper solution. Instead, nationwide injunctions should be limited in some way, such as allowing only district- or circuit-wide injunctions.
Prosecution or Forced Transport: Manhattan Beach’s Unconstitutional Banishment of the Homeless
This paper argues that doing so would unconstitutionally force individuals to choose between criminal prosecution or banishment. Part I of this paper will briefly provide an overview of homelessness in the United States, particularly in California, and place the Manhattan Beach ordinance within the various laws and practices localities have implemented in response to the rise of homelessness. Part II will examine the use of banishment in criminal law and explore various challenges to such conditions. Finally, Part III will demonstrate that Manhattan Beach’s ordinance and planned enforcement constitute banishment and are invalid for many of the same reasons courts have used to invalidate conditions of banishment imposed in criminal law.
The Limits of the Interstate Commerce Power: How to Decide the Close Cases – Postscript by R. George Wright
Below, this Article introduces the relevant case law by examining the recent case of United States v. Hill, a federal Hate Crimes Prevention Act prosecution of a battery committed on a gay fellow-employee at an Amazon Fulfillment Center. There follows a brief tour of the most crucially relevant Supreme Court Commerce Clause jurisprudence, with an emphasis on current doctrine.
In light of these materials, this Article then highlights a number of largely unsolvable problems in trying to delimit the scope of the Commerce Clause power. There is, merely to begin, the problem of the vagueness of legal language in general and of the key terms embodied in the Commerce Clause more specifically. The vagueness problem impairs attempts to clarify the meaning and bounds of the language of the Commerce Clause.
The Climate Crisis Is a Human Security, Not a National Security, Issue
This Article articulates the downsides to treating climate change as a national security issue and demonstrates how the U.N.-mandated concept of “human security” provides a more effective framework. Human security realizes the benefits of securitization while lessening its costs. It does so by focusing on people, rather than the state, and emphasizing sustainable development policies necessary to mitigate, rather than just acclimate to, climate change. While explored here in detail, these arguments are part of a larger, ongoing project examining how the human security paradigm can generate more effective legal solutions than a national security framework for global challenges, like climate change.
Part I of this Article briefly examines calls to treat climate change as a national security issue, specifically from within the grassroots climate change movement, and canvasses the benefits of doing so. Part II explores the downsides to securitizing climate change and demonstrates how a human security approach resolves these concerns. Overall, this Article accepts the view that a security-oriented attitude towards climate change is vital to meaningful action on the issue. It takes the position, however, that this approach must both align with liberal democratic values and facilitate solutions for mitigating the climate crisis. These changes to the prevailing security paradigm are unlikely to come from the state itself, which is invested in maintaining a state-centered view of security. It must, instead, be led by civil society—particularly the climate change movement, which has the most incentive to take action on these issues.
An Uneasy Dance with Data: Racial Bias in Criminal Law
Businesses and organizations expect their managers to use data science to improve and even optimize decisionmaking. Yet when it comes to some criminal justice institutions, such as prosecutors’ offices, there is an aversion to applying cognitive computing to high-stakes decisions. This aversion reflects extra-institutional forces, as activists and scholars are militating against the use of predictive analytics in criminal justice. The aversion also reflects prosecutors’ unease with the practice, as many prefer that decisional weight be placed on attorneys’ experience and intuition, even though experience and intuition have contributed to more than a century of criminal justice disparities.
Instead of viewing historical data and data-hungry academic researchers as liabilities, prosecutors and scholars should treat them as assets in the struggle to achieve outcome fairness. Cutting-edge research on fairness in machine learning is being conducted by computer scientists, applied mathematicians, and social scientists, and this research forms a foundation for the most promising path towards racial equality in criminal justice: suggestive modeling that creates baselines to guide prosecutorial decisionmaking.
Technology-Enabled Coin Flips for Judging Partisan Gerrymandering
Akin to every other legal issue that comes before the Court, reconciling the state’s discretion and the Supreme Court’s role in judicial review requires a judicially manageable standard that allows the Court to determine when a legislature has overstepped its bounds. Without a judicially discoverable and manageable standard, the Court is unable to develop clear and coherent principles to form its judgments, and challenges to partisan gerrymandering would thus be non-justiciable.
In the partisan gerrymandering context, such a standard needs to discern between garden-variety and excessive use of partisanship. The Court has stated that partisanship may be used in redistricting, but it may not be used “excessively.” In Vieth v. Jubelirer, Justice Scalia clarified, “Justice Stevens says we ‘er[r] in assuming that politics is ‘an ordinary and lawful motive’ in districting,’ but all he brings forward to contest that is the argument that an excessive injection of politics is unlawful. So it is, and so does our opinion assume.” Justice Souter, in a dissent joined by Justice Ginsburg, expressed a similar idea: courts must intervene, he says, when “partisan competition has reached an extremity of unfairness.”
At oral argument in Rucho, attorney Emmet Bondurant argued that “[t]his case involves the most extreme partisan gerrymander to rig congressional elections that has been presented to this Court since the one-person/one-vote case.” Justice Kavanaugh replied, “when you use the word ‘extreme,’ that implies a baseline. Extreme compared to what?”
Herein lies the issue that the Court has been grappling with in partisan gerrymandering claims. What is the proper baseline against which to judge whether partisanship has been used excessively? And how can this baseline be incorporated into a judicially manageable standard?
The Undesirability of Mandatory Time-Based Sunsets in Dual Class Share Structures: A Reply to Bebchuck and Kastiel
In a 2017 Virginia Law Review article, The Untenable Case for Perpetual Dual-Class Stock, Professors Lucian Bebchuk and Kobi Kastiel argued that time-based sunset provisions (the forced unification of shares into one share structure with equal voting rights after a certain period of time) should be a mandatory feature of dual class share structures (classes of common stock with unequal voting rights). This article has recently been used as authority by the Council of Institutional Investors (“CII”) to petition to the NASDAQ Stock Market (“NASDAQ”) and the New York Stock Exchange (“NYSE”) to amend their listing standards. The requested amendments would require companies seeking to go public with dual class shares to include in their certificates of incorporation a time-based sunset provision that would go into effect no more than seven years after the initial public offering (“IPO”) unless minority shareholders vote to extend it up to an additional seven years. This delayed unification based on a shareholder vote is incorporated in Bebchuk and Kastiel’s argument.
This Article, which is based on comment letters I sent in response to the CII’s petitions, argues that such a mandatory provision would be extremely unwise and harmful to our most important public companies and their shareholders, current as well as future. As a creation of private ordering, the absence of time-based sunset provisions in dual class share structures serves a significant value enhancing purpose. It prevents the risk that a premature and therefore sub-optimal unification of shares may occur. This risk has so far been ignored by those advocating for the implementation of a mandatory time-based sunset provision. As subsequently discussed, this risk has been ignored because their analysis lacks an appreciation for how the positive skewness in stock market returns negatively impacts the value of mandatory time-based sunset provisions.
Anti-Anti-SLAPP: How the Judiciary’s Narrowing of California’s Anti-SLAPP Law Could Thwart Legislative Intent
Since 2015, state Anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”) laws that were enacted to prevent litigious plaintiffs from silencing a defendant’s First Amendment rights have come under attack from state and federal courts.[1] California Civil Procedure § 425.16 (“§425.16”), California’s anti-SLAPP law, is particularly susceptible to this judicial narrowing, as it is widely considered the broadest anti-SLAPP statute in the country.[2] Indeed, the California Supreme Court in the 2019 case FilmOn.com Inc. v. Double Verify Inc. narrowed § 425.16’s applicability by articulating a stricter context-based standard for protected conduct under the statute’s catchall subdivision, § 425.16(e)(4).[3]
This Article argues that this stricter standard is unwarranted in light of § 425.16’s legislative intent, previous California Supreme Court § 425.16 rulings, and the reasonable protections built in to § 425.16 for plaintiffs. Moreover, the court’s underlying frustration with § 425.16 overuse will likely be exacerbated, not ameliorated, by this stricter standard. Additionally, the vulnerable defendants § 425.16 was intended to help, in particular online watchdogs, will likely suffer the most under this stricter standard. This Note concludes that the California Legislature should act to clarify § 425.16(e)(4) or risk continued judicial efforts to narrow its applicability and potentially thwart its legislative purpose.
Patent Subject Matter Eligibility in the Post-Alice Wonderland: USPTO Guidance and a Push for More Clarity
The United States patent system has long been considered the gold standard of global patent systems, in part because of the consistency and strength of the protections that it has granted to inventors.1 The rapid growth of the United States economy during the nation’s early years is often attributed in part to the patent system adopted by the country,2 and the strength of the United States patent system allows the United States to remain among the world’s most innovative countries despite falling behind other countries in areas relevant to innovation such as higher education and researcher concentration.3 A hallmark of a strong patent system is predictability.4 “In a strong patent system, patent rights are granted to particular inventions in a predictable manner, and patent infringement similarly is enforced in a predictable manner.”5 This predictability reinforces the strength of the patent system by allowing inventors to protect their inventions and efficiently allocate resources for future innovation.6
Until relatively recently, the rules regarding patent eligible subject matter were clear and predictable—courts and the United States Patent and Trademark Office, or USPTO, should interpret subject matter eligibility requirements broadly.7 This expansive subject matter eligibility interpretation was widely criticized as resulting in patents that were both too broad and too vague, 8 which resulted in the judiciary revisiting the issue of patent subject matter eligibility in a series of cases culminating in Alice Corp. Proprietary Ltd. v. CLS Bank International.9 In Alice, the Supreme Court reified a two-step analytical framework for patent subject matter eligibility.10 This framework, which was established in part to clarify patent-eligible subject matter, has been heavily criticized as being “chaotic,” a “real mess,” and even putting patent subject matter eligibility into a “state of crisis.”11 The application of this framework has proven to be “unpredictable and impossible to administer in a coherent consistent way.”12
In the years since Alice, there has been much legal scholarship and research regarding how to resolve the ambiguity surrounding patent subject matter eligibility, but nothing has successfully resolved the issue in practice. In January 2019, the USPTO promulgated guidance on the issue of patent subject matter eligibility.13
This Note will begin by providing a brief discussion of patent subject matter eligibility. Next, the Note will discuss the January 2019 Guidance promulgated by the USPTO and how the Guidance aims to alter the two-step analytical framework from Alice, before assessing whether this Guidance has appeared to have any substantial effect on the federal judiciary in the first year since the Guidance was promulgated.
Crypto-Enforcement Around the World
The market for cryptoassets is burgeoning as distributed ledger technology transforms financial markets. With the extraordinary growth in the crypto-markets comes the need for regulation to promote efficiency, capital formation, and innovation while protecting investors. With the need for regulation comes enforcement. The blockchain revolution in capital and financial markets has already attracted the attention of enforcement agencies in many jurisdictions. In this Article, we elaborate on crypto-related enforcement and report on the results of the Enforcement Survey conducted by the Rutgers Center for Corporate Law and Governance Fintech and Blockchain Research Program.
We find that the United States Securities and Exchange Commission (“SEC” or “Commission”) brings more enforcement actions against digital-asset issuers, broker-dealers, exchanges, and other crypto-market participants than any other major crypto-jurisdiction. By the same token, its enforcement entails more serious penalties. In addition to reviewing the international data, we provide detailed comparisons of the crypto-enforcement actions of the United States Commodity Futures Trading Commission (“CFTC”) and the crypto-enforcement program of the SEC. Whereas SEC enforcement has been relatively stable, CFTC cases have been trending up. By contrast, enforcement in foreign jurisdictions seems to be subsiding. Our data raise theoretical questions on regulation via enforcement, its effect on financial innovation, and regulatory competition.
In Part I, we start with discussing the pros and cons of regulation by enforcement, as well as its consequences for innovation and a possible outflow of capital. Part II describes the methodology of the research. Part III presents the main findings. Parts IV and V discuss SEC and CFTC enforcement data, respectively, while Part VI compares the enforcement actions of the two regulators.
Shutting Down the School-to-Prison Pipeline
When a student misbehaves, race plays a role in how harshly the student is disciplined. Given the long history of racial discrimination in the United States, as well as prevalent implicit biases, Black and Latino students are disciplined at higher rates with stiffer punishments than their white peers. This higher level of discipline leads to a downward spiral of poor school performance and attendance, involvement in illegal activity, and arrest and imprisonment. Ultimately, Black and Latino students fall victim to a school-to-prison pipeline that many white students are not pushed into despite similar misbehavior. In order to protect students from the pipeline, equalize educational opportunities, and create a safe and welcoming school environment, it is necessary for the federal government to invalidate disciplinary policies that cause an unjustified, disparate impact.
Under President Obama, a first-ever policy guidance on student discipline was issued, which stated that not only are intentionally discriminatory policies unlawful per Title VI of the Civil Rights Act of 1964, but so too are facially neutral policies that cause an unjustified disparate impact. The Trump Administration rolled back the policy guidance, citing that a disparate impact policy is not a Title VI violation per current precedent and that invalidating disparate impact disciplinary policies makes schools less safe and more prone to shootings. This Note will examine those arguments and will conclude that the disparate impact standard is supported by current precedent, does not increase the rate of school shootings, and ultimately should be reinstated. The disparate impact standard is a necessary safeguard against negative, implicit attitudes and is an important step in eradicating the school-to-prison pipeline.
The Supersecretary in Chief
Postscript | Administrative LawThe Supersecretary in Chiefby Kathryn E. Kovacs* Vol. 94, Postscript (November 2020)94 S. Cal. L. Rev. Postscript
Resolving the Merits of the Emoluments Cases: Either Way, Several Presidents Were Wrong
In this Note, I offer a summary, a realization, a conclusion, and an explanation: a summary of what I found to be the most convincing arguments of each side, noting both the plaintiffs’ and defendant’s efforts to characterize history as uniquely supporting their favored interpretation; a realization of the impossibility of perfect historical consistency in any interpretation; a conclusion that in light of unavoidable historical inconsistency, the Foreign Emoluments Clause does indeed apply to President Trump’s hotel revenues; and an explanation of one possible way to view the inconsistent application of the clause in view of my conclusion that it does apply.
Under my proposed view, the fact patterns of all the introductory stories fall within the scope of the Emoluments Clause(s) —they are all “emoluments” under the broad definition—but the difference in the propriety of the behavior is based primarily on what is outside the fact patterns: the appearance of the possibility of corruption. The reason these cases are being brought against the forty-fifth president and not the first has much more to do with the perception of who the presidents were and are, and the public’s corresponding intuitive sense of the possibility of corruption. This understanding is one possible explanation of how Washington could purchase land at a public auction designed to raise funds for the founding of the new capital without raising flags, but Trump cannot similarly lease hotel space from the government and avoid scrutiny.
On the Imperative of Civil Discourse: Lessons from Alexander Hamilton and Federalist No. 1 -Postscript
Postscript | Constitutional LawOn the Imperative of Civil Discourse: Lessons from Alexander Hamilton and Federalist No. 1by Donald J. Kochan*
Judging Corpus Linguistics
In this short essay, in the spirit of offering general concerns about corpus analysis and legal interpretation, we largely focus on Lee and Mouritsen’s efforts in addressing the above issues.6 We argue that Lee and Mouritsen’s conceptualization of the potential role for corpus linguistics within legal interpretation is inadequate and underestimates the difficulty of judicial adoption of corpus analysis methods. Corpus analysis can provide useful information about the functioning of language, but it is crucial to neither understate the role of context in determining statutory meaning nor overstate the potential contribution of corpus analysis to legal interpretation.
2021 Federal Clerkships: Can Order Emerge From Chaos?
This is a perfect juncture for analyzing 2021 federal judicial clerkships. Many aspirants recently finished half of their legal education. Six appeals courts’ members have agreed to honor a new Federal Law Clerk Hiring Plan (hereinafter referred to as “the pilot”) that is currently in its second year. The pilot directly proscribes seeking and permitting clerkship applications and recommendation letters until June 15, 2020 and prohibits student clerkship interviews and judicial offers before June 16, 2020.1 However, certain judges within these six tribunals will not respect the pilot during its second year, even though jurists in the seven remaining courts of appeals might follow the new plan. The Administrative Office of the United States Courts (“AO”) extended 2L students OSCAR access in February while suspending in January 2014 the 2003 clerk hiring plan—whereby 3L employment began near Labor Day—and judges will soon consider aspirants. Clues offered below may assist prospects in securing the coveted positions which start in 2021.
Modern-Day Poll Tax: How LFO Requirements Undermine Felons’ Right to Vote
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The Illusory Moral Appeal of Living Constitutionalism
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Tracing the Diverse History of Corporate Residual Claimants
Postscript | Corporate LawTracing the Diverse History of Corporate Residual Claimantsby Sung Eun (“Summer”) Kim* Vol. 95, Postscript (Jan 2022)95
Trademark’s “Ship of Theseus” Problem
Postscript | Intellectual Property LawTrademark’s “Ship of Theseus” Problemby Matthew T. Bodie* Vol. 95, Postscript (Nov 2021)95 S. Cal. L. Rev.
A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the COVID-19 Pandemic
Postscript | GovernmentA Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the Covid-19 Pandemicby Itay
The Societal Interest Theory—Preserving the Marketplace of Ideas in the Twenty-First Century
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Squeezed: the Narrow Bank, the Federal Reserve, and the Future of Full-Reserve Banking
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The Trading Game: An Analysis of Robinhood’s Use of Digital Engagement Practices
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Nothing Comes from Nothing: Andy Warhol and the Inadequacy of the Fair Use Analysis of Contemporary Art
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Seeing and Serving Students with Substance Use Disorders Through Disability Law
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Analyzing the Circuit Split Over CDA Section 230(E)(2): Whether State Protections for the Right of Publicity Should be Barred
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