Apr 6, 2023 | Volume 74, Issue 4
Ned Snow Volume 74, Issue 4, 1121-1166 The Constitution provides Congress the power to enact copyright laws in order “To promote the Progress of Science.” Some statements by the modern Supreme Court may be interpreted to suggest that “the Progress of Science” is...
Apr 6, 2023 | Volume 74, Issue 4
Andrew W. Winden Volume 74, Issue 4, 1167-1220 Unless U.S. corporations take steps to harden their assets against natural disasters exacerbated by climate change and prepare for the transition to a zero-carbon economy, they face the prospect of catastrophic risk to...
Apr 6, 2023 | Volume 74, Issue 4
Philip Hawkyard Volume 74, Issue 4, 1221-1250 In Mayo Collaborative Services v. Prometheus Laboratories, Inc., the Supreme Court established a two-step framework to determine whether a supposed invention that involves a “natural law” can be a patent-eligible subject...
Apr 6, 2023 | Volume 74, Issue 4
Nick Wiley Volume 74, Issue 4, 1251-1280 Since the turn of the century, there has been an exponential rise in forcibly displaced persons and human rights violations. This rise has coincided with a series of acts that have removed the United States as a global leader...
Feb 26, 2023 | Volume 74, Issue 3
Christopher G. Bradley Volume 74, Issue 3, 607-678 The intersection between privacy law and the big business of consumer data has become a major focus of policymakers, scholars, the business community, and consumer advocates, yet the legal regime governing the...
Feb 26, 2023 | Volume 74, Issue 3
Peter Margulies Volume 74, Issue 3, 679-764 In immigration law, executive discretion has become contested terrain. Courts, officials, and scholars have rarely distinguished between regulatory discretion, which facilitates exclusion and removal of noncitizens, and...
Feb 26, 2023 | Volume 74, Issue 3
Sarah Polcz Volume 74, Issue 3, 765-822 Friendship rewards us with a bond of loyalty and equality. The marketplace rewards us based on what we have to offer. When friends work together to create something, and when the market judges their creation to have value, this...
Feb 26, 2023 | Volume 74, Issue 3
Erin Adele Scharff and Darien Shanske Volume 74, Issue 3, 823-868 Traditional theoretical literature on fiscal federalism urges cities to finance themselves with taxes on immobile sources. Thus, the literature sees real property taxes as the best source of local...
Feb 26, 2023 | Volume 74, Issue 3
Stewart E. Sterk Volume 74, Issue 3, 869-910 Local, national, and global catastrophes entail significant risk for landowners. The government-sponsored National Flood Insurance Program illustrates how subsidizing insurance against catastrophe risk can result in...
Feb 26, 2023 | Volume 74, Issue 3
Rahil Maharaj Volume 74, Issue 3, 911-934 Evolving surveillance technologies present unique challenges for the judiciary to maintain robust Fourth Amendment privacy protections. New surveillance tools such as pole cameras raise significant questions regarding the...
Feb 26, 2023 | Volume 74, Issue 3
Lydia Tonozzi Volume 74, Issue 3, 935-958 The dire state of the prison population in the United States has become common knowledge both at home and abroad. Mass incarceration in the United States has been caused by nearly four decades of retributive criminal justice...
Feb 26, 2023 | Volume 74, Issue 3
Irene Yu Volume 74, Issue 3, 959-986 This Note contributes to the growing literature that attempts to grasp the current landscape of international trade and investment norms and policies in the data age. Focusing on the disputes between the United States and China...
Feb 16, 2023 | Volume 74, Issue 2
Douglas W. Arner, Giuliano G. Castellano, Ēriks K. Selga Volume 74, Issue 2, 235-292 Finance is one of the most digitalized, globalized, and regulated sectors of the global economy. Traditionally technology intensive, the financial industry has been at the forefront...
Feb 16, 2023 | Volume 74, Issue 2
Rebecca A. Delfino Volume 74, Issue 2, 293-348 Deepfakes—audiovisual recordings created using artificial intelligence (AI) technology to believably map one person’s movements and words onto another—are ubiquitous. They have permeated societal and civic spaces from...
Feb 16, 2023 | Volume 74, Issue 2
Nizan Geslevich Packin Volume 74, Issue 2, 349-398 According to studies, money is a major source of anxiety for most Americans. In looking for ways to remedy the source of such anxiety, some believe that increasing children’s financial orientation could help lower...
Feb 16, 2023 | Volume 74, Issue 2
Govind Persad Volume 74, Issue 2, 399-432 This Article examines whether policies—sometimes termed “vaccine mandates” or “vaccine requirements”—that consider vaccination status as a condition of employment, receipt of goods and services, or educational or other...
Feb 16, 2023 | Volume 74, Issue 2
Hadar Y. Jabotinsky & Roee Sarel Volume 74, Issue 2, 433-488 Everybody is talking about cryptocurrencies. These digital tokens, which started in a one-asset market, have swiftly ballooned into a massive and diverse “cryptomarket.” The cryptomarket is still mostly...
Feb 16, 2023 | Volume 74, Issue 2
Peter K. Yu Volume 74, Issue 2, 489-550 This Article examines an unprecedented proposal that India and South Africa submitted to the World Trade Organization (WTO) in October 2020, which called for a waiver of more than thirty provisions in the Agreement on...
Feb 16, 2023 | Volume 74, Issue 2
Sammi Chen Volume 74, Issue 2, 551-582 The new and growing intersection between data privacy and antitrust uses data privacy as both a sword and shield against antitrust liability. On one hand, large technology firms have begun using privacy as a business...
Feb 16, 2023 | Volume 74, Issue 2
Isha Vazirani Volume 74, Issue 2, 583-606 The Department of Homeland Security (DHS) announced that beginning on May 26, 2015, certain H-4 dependents of H-1B nonimmigrants would be eligible to apply for an Employment Authorization Document (EAD). The H-4 EAD program...
Dec 5, 2022 | Volume 74, Issue 1
Pippa Browde Volume 74, Issue 1, 1-44 Economic development is a critical component of tribal sovereignty. When a state asserts taxing authority within Indian Country, there is potential for overlapping, or juridical, taxation over the same transaction. Actual or even...
Dec 5, 2022 | Volume 74, Issue 1
Darian M. Ibrahim Volume 74, Issue 1, 45-78 This Article examines the world of risk investing in the cryptoeconomy. The broader crypto market is booming despite the latest downturn. People and institutions are buying in. The question is now how to regulate it. This...
Dec 5, 2022 | Volume 74, Issue 1
Steven Arrigg Koh Volume 74, Issue 1, 79-122 This Article explores the relationship between two normative systems in modern society: “cancel culture” and criminal justice. It argues that cancel culture—a ubiquitous phenomenon in contemporary life—may rectify...
Dec 5, 2022 | Volume 74, Issue 1
Amber Polk Volume 74, Issue 1, 123-180 The political push for the adoption of state-level “green amendments” in the United States has gained significant traction in just the last couple of years. Green amendments add an environmental right to a state’s constitution....
Dec 5, 2022 | Volume 74, Issue 1
Nikol Nesterenko Volume 74, Issue 1, 181-206 Insulin, an injectable drug discovered about 100 years ago that now costs less than $5 to manufacture, is currently sold between $300 and $500 in the United States. The continuously growing price forces many...
Dec 5, 2022 | Volume 74, Issue 1
Abigail Shim Volume 74, Issue 1, 207-234 The history of linguistics is meager and splintered due to the subject’s interdisciplinary nature. In the postwar era, the discipline attempted to revive as a scientific one, spearheaded by Noam Chomsky and his theory of...
Aug 26, 2022 | Volume 72
Symposium Cosponsored with the Center for Litigation and Courts and the National Civil Justice Institute “The Internet and the Law: Legal Challenges in the New Digital Age” UC Hastings Law, November 6–7,...
Aug 26, 2022 | Volume 73, Issue 5
Gerson H. Smoger Volume 73, Issue 5, i-ii Full...
Aug 26, 2022 | Volume 73, Issue 5
Scott Dodson Volume 73, Issue 5, iii-iv Full...
Aug 14, 2022 | Volume 73, Issue 6
Herbert Hovenkamp Volume 73, Issue 6, 1621-1636 Antitrust enforcers and its other defenders have never done a good job of selling their field to the public. That is not entirely their fault. Antitrust is inherently technical, and a less engaging discipline to most...
Aug 14, 2022 | Volume 73, Issue 6
Amelia Miazad Volume 73, Issue 6, 1637-1696 Antitrust law is at the center of today’s public debate. It has even emerged as a rare unifying force, with bipartisan promises to combat the concentration of economic power. Meanwhile, the business community is grappling...
Aug 14, 2022 | Volume 73, Issue 6
Roberto Tallarita Volume 73, Issue 6, 1697-1760 In the past few years, there has been a dramatic increase in shareholder support for proposals on political, environmental, ethical, and social issues, from climate change and employee diversity to animal welfare and...
Aug 14, 2022 | Volume 73, Issue 6
Jack Haisman Volume 73, Issue 6, 1761-1790 Since the human genome was first sequenced in 2003, millions of consumers and medical professionals have swarmed the field of medical genetics, seeking to peer into the crystal ball and see what their own, or their patients’,...
Aug 14, 2022 | Volume 73, Issue 6
Viridiana Ordonez Volume 73, Issue 6, 1791-1830 The United States relies, in part, on certain criminal convictions to determine which noncitizens are deportable. The specific types of criminal convictions subjecting an individual to deportation proceedings are found...
Jul 10, 2022 | Volume 73, Issue 5
Joshua P. Davis Volume 73, Issue 5, 1173-1202 Artificial intelligence (AI) may someday play various roles in litigation, particularly complex litigation. It may be able to provide strategic advice, advocate through legal briefs and in court, help judges assess class...
Jul 10, 2022 | Volume 73, Issue 5
Eric Goldman Volume 73, Issue 5, 1203-1232 This Article explores the underappreciated constitutional problems that arise when regulators compel Internet services to disclose information about their editorial operations and decisions (what the Article calls “mandatory...
Jul 10, 2022 | Volume 73, Issue 5
Alexa Koenig and Lindsay Freeman Volume 73, Issue 5, 1233-1254 The increased use of digital technologies in daily life has led to a steep rise in the introduction of highly technical evidence and expert witness testimony in criminal and civil litigation. The growing...
Jul 10, 2022 | Volume 73, Issue 5
Dawn Carla Nunziato Volume 73, Issue 5, 1255-1304 Dominant social media platforms have been increasingly perceived as engaging in discrimination against conservative and right-wing viewpoints. Trump’s deplatforming, coupled with the platforms’ recent removal of Covid-...
Jul 10, 2022 | Volume 73, Issue 5
Robert S. Peck Volume 73, Issue 5, 1305-1326 Technological innovation begets legal revolution. And tort law, as a creature of the common law, makes the most profound doctrinal leaps and does so more rapidly than any other area of law when technology changes our...
Jul 10, 2022 | Volume 73, Issue 5
Catherine M. Sharkey Volume 73, Issue 5, 1327-1352 Products liability in the digital age entails reckoning with the transformative shift away from in-person purchases at brick-and-mortar stores to digital purchases from e-commerce platforms. The epochal rise of the...
Jul 10, 2022 | Volume 73, Issue 5
Eugene Volokh Volume 73, Issue 5, 1353-1460 When may parties in American civil cases proceed pseudonymously? The answer turns out to be deeply unsettled. This Article aims to lay out the legal rules (such as they are) and the key policy arguments, in a way intended to...
Jul 10, 2022 | Volume 73, Issue 5
Bryan H. Choi Volume 73, Issue 5, 1461-1480 The pursuit of software safety standards has stalled. In response, commentators and policymakers have looked increasingly to federal agencies to deliver new hope. Some place their faith in existing agencies while others...
Jul 10, 2022 | Volume 73, Issue 5
Anuj C. Desai Volume 73, Issue 5, 1481-1510 Social media is just one part of the broader free-speech ecosystem. Social media regulation thus only regulates one part of that ecosystem. To evaluate social media regulation thus requires an understanding of the role...
Jul 10, 2022 | Volume 73, Issue 5
Neil Richards Volume 73, Issue 5, 1511-1538 Privacy and data protection law’s expansion brings with it opportunities for mischief as privacy rules are used pretextually to serve other ends. This Essay examines the problem of such co-option of privacy using a case...
Jul 10, 2022 | Volume 73, Issue 5
Erin Hutchins Volume 73, Issue 5, 1539-1562 During the COVID-19 pandemic, communities congregated in online spaces more than ever before. While some people found solidarity online, many others found snippets of false information regarding COVID-19’s origin,...
Jul 10, 2022 | Volume 73, Issue 5
Kevin Murphy Volume 73, Issue 5, 1563-1592 California law allows an employer to refuse to hire an applicant or discharge an employee for consuming medical cannabis in order to treat a serious medical condition, even if an individual consumes cannabis at home during...
Jul 10, 2022 | Volume 73, Issue 5
Katharine Waters Volume 73, Issue 5, 1593-1620 The Supreme Court has not faced a case involving the public university student athlete’s right to protest during game day events, such as during the pre-game warm up, the national anthem, and game play itself. Protests...
May 17, 2022 | Volume 73, Issue 4
Kate E. Bloch Volume 73, Issue 4, 947-974 In almost all U.S. jurisdictions, a qualifying mental illness that prevents an accused from distinguishing right from wrong can provide support for a determination of legal insanity. Nonetheless, “wrongfulness” remains a term...
May 17, 2022 | Volume 73, Issue 4
Warigia M. Bowman Volume 73, Issue 4, 975-1040 “Our Nation was born in genocide when it embraced the doctrine that the original American, the Indian, was an inferior race. Even before there were large numbers of Negroes on our shores, the scar of racial hatred had...
May 17, 2022 | Volume 73, Issue 4
Mary Hoopes Volume 73, Issue 4, 1041-1098 Farmworkers are one of many vulnerable groups who exist largely in the shadows of the law. While there is a relatively robust regulatory framework that ostensibly governs the conditions under which they work, it is highly...
May 17, 2022 | Volume 73, Issue 4
Erin E. Meyers Volume 73, Issue 4, 1099-1144 A staggering number of Americans experience criminal justice contact each year, ranging from arrest to long-term incarceration. One 2014 Wall Street Journal report estimated that approximately one in three Americans are...
May 17, 2022 | Volume 73, Issue 4
Kylah Staley Volume 73, Issue 4, 1145-1172 Resource extraction and exploitation threaten the survival of Indigenous and tribal peoples, who are amongst the most marginalized communities in the world. This is both a human rights issue and an environmental issue. There...
Mar 31, 2022 | Volume 73, Issue 3
Maryam Jamshidi Volume 73, Issue 3, 585-666 The Foreign Sovereign Immunities Act (“FSIA”) prohibits civil litigation against foreign states, their agencies, and instrumentalities unless one of several enumerated exceptions to immunity applies. The most important of...
Mar 31, 2022 | Volume 73, Issue 3
Jason Rantanen, Lindsay Kriz & Abigail A. Matthews Volume 73, Issue 3, 667-722 Many scholars have observed that an empirical study is only valid to the extent it is reliable. Yet assessments of the reliability of empirical legal studies are rare. The closest most...
Mar 31, 2022 | Volume 73, Issue 3
Christopher W. Schmidt Volume 73, Issue 3, 723-772 This Article argues that to better understand the historical development of Fourteenth Amendment antidiscrimination doctrine, we should look to the Thirteenth Amendment. The Fourteenth Amendment was drafted in...
Mar 31, 2022 | Volume 73, Issue 3
Eli Siems, Katherine J. Strandburg & Nicholas Vincent Volume 73, Issue 3, 773-820 Trade secrecy is a major barrier to public scrutiny of probabilistic software tools that are increasingly used at all stages of the criminal system, from policing and investigation...
Mar 31, 2022 | Volume 73, Issue 3
Mark Verstraete, Jane R. Bambauer & Derek E. Bambauer Volume 73, Issue 3, 821-860 Fake news presents a complex regulatory challenge in the increasingly democratized and intermediated on-line information ecosystem. Inaccurate information is readily created by...
Mar 31, 2022 | Volume 73, Issue 3
Jenny Bagger Volume 73, Issue 3, 861-918 As the question of how new technology factors into the personal jurisdiction analysis remains unresolved, the vast increase in the reliance on remote technology that the COVID-19 pandemic spurred urges a definitive answer. Even...
Mar 31, 2022 | Volume 73, Issue 3
Reina Shinohara Volume 73, Issue 3, 919-946 As we spend more of our days online, we are seeing a shift in content moving towards a progressively simulated reality. The virtual worlds of video games and other online communities have become a norm for many, with an...
Feb 16, 2022 | Volume 73, Issue 2
Isaac D. Buck Volume 73, Issue 2, 191-232 “The biggest crime you can commit in America is being sick.” Grimly demonstrated by the COVID-19 pandemic, hospitals serve as the central hub of American health care. Increasingly exercising market power, setting clinical...
