Aug 19, 2018 | Volume 69, Issue 6
McKay Cunningham Volume 69, Issue 6, 1509-1544 The Supreme Court has long held that extreme partisan gerrymandering violates equal protection, but has simultaneously dismissed gerrymandering disputes as nonjusticiable political questions. In particular, the Court has...
Aug 19, 2018 | Volume 69, Issue 6
Andrea Freeman Volume 69, Issue 6, 1545-1606 Laws and policies that impede Black mothers’ ability to breastfeed their children began in slavery and persist as an incident of that institution today. They originated in the practice of removing enslaved new mothers from...
Aug 19, 2018 | Volume 69, Issue 6
Stephen F. Smith Volume 69, Issue 6, 1609-1672 For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, thereby ensuring that only offenders with adequate notice of...
Aug 19, 2018 | Volume 69, Issue 6
Christina E. Urhausen Volume 69, Issue 6, 1673-1694 Brady violations have become a growing epidemic in California. As a result, California recently enacted a new law that amends section 141 of the Penal Code. The law changes the status of an “intentional” Brady...
Aug 2, 2018 | Online
Tiffany Ku Volume 69, Online, 28-51 This Note examines whether, under the Fourth Amendment, the United States government can conduct searches based on hash encryption to comb through large digital databases such as the cloud and find files known to be incriminating....
Jun 3, 2018 | Volume 69, Issue 5
Justine Isola Volume 69, Issue 5, 1333-1338 Full...
Jun 3, 2018 | Volume 69, Issue 5
Erwin Chemerinsky Volume 69, Issue 5, 1339-1354 Full...
Jun 3, 2018 | Volume 69, Issue 5
David M. Howard Volume 69, Issue 5, 1355-1378 Democracy has evolved throughout history, and democracy can survive the challenges of the cyber age. However, democracy will be affected by the internet and increased cybersecurity. Cybersecurity and democracy sometimes...
Jun 3, 2018 | Volume 69, Issue 5
Tessa Jolls & Michele Johnsen Volume 69, Issue 5, 1379-1408 The current focus on the validity, credibility, and trustworthiness of media and information is urgent and global. In the past ten to twenty years, the information landscape has fundamentally changed due...
Jun 3, 2018 | Volume 69, Issue 5
Alexandra Andorfer Volume 69, Issue 5, 1409-1431 “Fake news” seems to be the phrase du jour these days. During the 2016 presidential election, fake news and propaganda proliferated on social media sites like Facebook, Twitter, and Google, with many of the concocted...
Jun 3, 2018 | Volume 69, Issue 5
Kaleigh E. Aucoin Volume 69, Issue 5, 1433-1469 The United States government’s use of what it refers to as “Network Investigative Tools,” presents several constitutional and privacy-related issues. Revelations stemming from the use of these NITsa form of...
May 26, 2018 | Volume 69, Issue 4
Ignacio N. Cofone & Adriana Z. Robertson Volume 69, Issue 4, 1039-1098 Privacy loss is central to privacy law scholarship, but a clear definition of the concept remains elusive. We present a model that both captures the essence of privacy loss and can be easily...
May 26, 2018 | Volume 69, Issue 4
JD Hsin Volume 69, Issue 4, 1099-1146 For more than half a century the heckler’s veto has been a source of provocation. On the one hand, there now appears to be widespread consensus among courts and commentators that allowing police to shut down a provocative speaker...
May 26, 2018 | Volume 69, Issue 4
Noah M. Kazis Volume 69, Issue 4,1147-1223 The bicameral legislature is a cornerstone of the Madisonian system, a basic assumption of American constitutionalism. But a different constitutional vision is hidden in plain sight. Of the more than 90,000 local governments...
May 26, 2018 | Volume 69, Issue 4
David Kwok Volume 69, Issue 4, 1225-1269 When employers retaliate against whistleblowers, courts and agencies often treat the retaliation as a private employment dispute best resolved by the whistleblower and employer. This cramped view of retaliation disregards...
May 26, 2018 | Volume 69, Issue 4
Nancy Morawetz Volume 69, Issue 4, 1271-1310 In the first year of the Trump Administration, the courts played a critical role in reviewing and shaping federal immigration policy. When nonprofits and states filed prominent cases challenging the “travel ban,” the public...
May 26, 2018 | Volume 69, Issue 4
Joseph G. Marano Volume 69, Issue 4, 1311-1332 Courts have consistently interpreted section 230 of the Communications Decency Act (“CDA”) as shielding internet service providers from liability for defamatory content posted by users. This is a significant departure...
Apr 6, 2018 | Volume 69, Issue 3
Rebecca Aviel Volume 69, Issue 3, 721-769 We live in a moment of intense preoccupation with both marriage and federalism, one that is likely to persist well beyond the Supreme Court’s ruling in Obergefell v. Hodges. The decision served to reify marriage as a site of...
Apr 6, 2018 | Volume 69, Issue 3
Joshua M. Divine Volume 69, Issue 3, 771-834 Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade. Some judges issue sentences twice as harsh as other judges on the same court, so a defendant’s sentence often depends...
Apr 6, 2018 | Volume 69, Issue 3
Matteo Gatti Volume 69, Issue 3, 835-924 Shareholder approval in mergers generally takes a long time, but is it necessary? This Article finds that in the context of mergers, the approval requirement is not nearly as valuable a procedure as we might expect. I analyze...
Apr 6, 2018 | Volume 69, Issue 3
Justin Marceau Volume 69, Issue 3, 925-960 The fiftieth anniversary of the Animal Welfare Act (“AWA”) was 2016. Most fiftieth anniversaries are cause for great celebration, but this one shouldn’t’ be because the AWA has caused more harm than good. In previous decades...
Apr 6, 2018 | Volume 69, Issue 3
Michael Vitiello & Rosemary Deck Volume 69, Issue 3, 961-984 The United States is on a fast-track to a new era in marijuana law. The prospect of a federal pathway to legalization opens a Pandora’s Box of issues for states like California. This Article focuses on...
Apr 6, 2018 | Volume 69, Issue 3
Jaclyn Gross Volume 69, Volume 3, 985-1008 Recently, it has become increasingly difficult for foreign nationals to successfully gain refuge in the United States from persecution in their home countries. The year 1990 marked the first time that the United States...
Apr 6, 2018 | Volume 69, Issue 3
Gaby Lion Volume 69, Volume 3, 1009-1038 This Note discusses the current status of the rape kit backlog, and how it can be addressed through successful public-private partnerships in the DNA testing industry. DNA evidence contained inside rape kits is an invaluable...
Apr 1, 2018 | Online
Keiichiro Zushi Volume 69, Online, 1-27 Fully-automated driverless vehicles could not only provide a convenient means of transportation to many, but also become an effective tool to reduce greenhouse gas (“GHG”) emissions if properly regulated. To ensure that...
Feb 10, 2018 | Volume 69, Issue 2
Khaled A. Beydoun Volume 69, Issue 2, 429-497 The United States Department of State has long employed a sectarian foreign policy strategy to advance its interests in the Mideast. The United States has sided staunchly with Saudi Arabia, the Sunni Muslim superpower in...
Feb 10, 2018 | Volume 69, Issue 2
John D. Leshy Volume 69, Issue 2, 499-582 Arguments are sometimes made most recently in a paper commissioned by the State of Utah, and by a lawyer for a defendant facing charges for the armed takeover of a National Wildlife Refuge in Oregon in 2016that U.S. public...
Feb 10, 2018 | Volume 69, Issue 2
Lydia Nussbaum Volume 69, Issue 2, 583-646 Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrest for...
Feb 10, 2018 | Volume 69, Issue 2
George A. Croton Volume 69, Issue 2, 647-674 This Note considers whether a federal agency that grants a license, lease, or permit to a wind farm developer can thereafter be held vicariously liable for the developer’s violations of the Migratory Bird Treaty Act’s...
Feb 10, 2018 | Volume 69, Issue 2
Joseph Dimont Volume 69, Issue 2, 675-700 Digital music streaming services, like Spotify, Apple Music, and Tidal, currently distribute royalties based on a per-stream model, known as service-centric licensing, while at the same time receive income through subscription...
Feb 10, 2018 | Volume 69, Issue 2
Benjamin C. West Volume 69, Issue 2, 701-720 In the consumer data breach context, courts have seemingly limited a plaintiff’s ability to bring suit by applying the standing doctrine’s injury-in-fact requirement too rigidly. This is unacceptable, as the law of standing...
Dec 22, 2017 | Volume 69, Issue 1
David Blankfein-Tabachnick & Kevin A. Kordana Volume 69, Issue 1, 1-44 This Article rejects a central claim of taxation and private law theory, namely, Kaplow and Shavell’s prominent thesis that egalitarian social goals are most efficiently achieved through...
Dec 22, 2017 | Volume 69, Issue 1
Court E. Golumbic Volume 69, Issue 1, 45-94 Financial sector compliance officers have been referred to by prominent law enforcement and regulatory officials as “essential partners” in ensuring compliance with relevant laws and regulations. Yet a series of recent...
Dec 22, 2017 | Volume 69, Issue 1
Anthony Michael Kreis Volume 69, Issue 1, 95-118 In a majority of states, it remains legal to deny people housing, employment, or services because of their sexual orientation or gender identity. The LGBT community has taken great strides to push back against the harms...
Dec 22, 2017 | Volume 69, Issue 1
Judith L. Maute Volume 69, Issue 1, 119-178 Quake Construction v. American Airlines, Inc. is featured in some prominent American casebooks on contract formation or precontractual liability, where scholars and authorities debate when liability should properly attach....
Dec 22, 2017 | Volume 69, Issue 1
Lois A. Weithorn Volume 69, Issue 1, 179-274 The Unites States Supreme Court identified “the peculiar vulnerability of children” as one of the “three reasons” for differentiating the treatment of children under the Constitution from that of adults. Yet, although...
Dec 22, 2017 | Volume 69, Issue 1
W. Bradley Wendel Volume 69, Issue 1, 275-352 The words and actions of candidate, President-Elect, and now President Donald Trump indicate that this administration will aggressively seek to use state power with little regard for the rule of law. A great deal has been...
Dec 22, 2017 | Volume 69, Issue 1
Mitchell R. VanLandingham Volume 69, Issue 1, 353-386 This Note addresses whether the president may take action on immigration as an exercise of foreign affairs power. In particular, it focuses on DACA and DAPA, two Obama-era policies of deferred action for certain...
Dec 22, 2017 | Volume 69, Issue 1
Jessica Wilson Volume 69, Issue 1, 387-429 Politicians and scholars have discussed reforming the corporate tax system for many years, especially with the emergence of certain tax avoidance practices like inversion and earnings stripping. While debate in this area has...
Sep 29, 2017 | Volume 68, Issue 6
Hillel Y. Levin Volume 68, Issue 6, 1193-1242 All states require parents to inoculate their children against deadly diseases prior to enrolling them in public schools, but the vast majority of states also allow parents to opt out on religious grounds. This religious...
Sep 29, 2017 | Volume 68, Issue 6
Michal Saliternik Volume 68, Issue 6, 1243-1290 When and how should courts protect individual reliance upon unlawful governmental acts? This question arises in various situations in all fields of public law. However, despite its pervasiveness, the problem of “bad...
Sep 29, 2017 | Volume 68, Issue 6
Scott W. Taylor Volume 68, Issue 6, 1291-1318 The mission of the U.S. Department of Veterans Affairs (“VA”) is “[t]o care for him who shall have borne the battle, and for his widow, and his orphan” by providing services and benefits to America’s veterans. As part of...
Sep 29, 2017 | Volume 68, Issue 6
John Tehranian Volume 68, Issue 6, 1319-1370 For more than two centuries, the Copyright Act has eschewed the task of defining authorship. However, with the decoupling of the act of creation from the act of fixation and the dramatic advance of technology, the issue of...
Sep 29, 2017 | Volume 68, Issue 6
Ramsi A. Woodcock Volume 68, Issue 6, 1371-1420 Antitrust law today guarantees a particular distribution of wealth between consumers and firms by promoting competition in some markets, but allowing firms to retain pricing power in other markets, such as those in which...
Sep 29, 2017 | Volume 68, Issue 6
Angel Rzeslawski Volume 68, Issue 6, 1421-1440 Following the financial crises of 2008, the Dodd-Frank Act was signed into law to protect consumers from abusive financial services among other things. However, the Dodd-Frank Act has a non-retroactive effect on predatory...
Sep 29, 2017 | Volume 68, Issue 6
Dana Sherman Volume 68, Issue 6, 1441-1460 “Civil detainees” under the Sexually Violent Predators Act include those persons who have already served their criminal sentences, but are still caged in prisons, awaiting court determination of whether or not they should be...
Jun 24, 2017 | Volume 68, Issue 5
Adam Hofri-Winogradow Volume 68, Issue 5, 931-1006 Recent revelations on the use of fiduciary services raise concerns regarding their use for tax and creditor avoidance. Yet given the secrecy shrouding much of the fiduciary industry, we do not know which fiduciary...
Jun 24, 2017 | Volume 68, Issue 5
Francis X. Shen Volume 68, Issue 5, 1007-1084 The American criminal justice system relies upon jurors to regularly decode the mental states of criminal defendants. These determinations are often of black and Hispanic defendants, making “minority mens rea” a...
Jun 24, 2017 | Volume 68, Issue 5
Diana Cao Volume 68, Issue 5, 1085-1110 The “sharing economy” is a term describing organized economic activity that may supplant the traditional corporate-centered model and encourages peer-to-peer transactions. It is a system of sharing underused assets or services,...
Jun 24, 2017 | Volume 68, Issue 5
Alyssa Coley Volume 68, Issue 5, 1111-1134 Whether operating globally or simply integrating services on the Internet, many business functions inevitably subject companies to a web of complicated international regulatory and legal requirements. For example, collecting...
Jun 24, 2017 | Volume 68, Issue 5
Michelle Freeman Volume 68, Issue 5, 1135-1168 Under the law, “dignity” is a principle that is often invoked, but ill-defined. The most recent and prominent example of this was the U.S. Supreme Court’s decision in Obergefell v. Hodges. There, the Court created a right...
Jun 24, 2017 | Volume 68, Issue 5
Conrad Postel Volume 68, Issue 5, 1169-1192 Some of the most watched user-created videos on the Internet are recordings of individuals playing video games. These are commonly referred to as “Let’s Play” videos. The revenue that these videos can generate on YouTube and...
Jun 8, 2017 | Volume 68, Issue 4
David A. Carrillo Volume 68, Issue 4, 731-776 In 1911, the California Constitution was amended to divide the state’s legislative power by reserving to the electorate the powers of initiative, referendum, and recall. Most of the thinking to date on popular sovereignty...
Jun 8, 2017 | Volume 68, Issue 4
Sharona Hoffman Volume 68, Issue 4, 777-794 While big data offers society many potential benefits, it also comes with serious risks. This Article focuses on the concern that big data will lead to increased employment discrimination. It develops the novel argument that...
Jun 8, 2017 | Volume 68, Issue 4
Nicholas Mignanelli Volume 68, Issue 4, 795-816 Professor Calvin R. Massey served on the faculty of the University of California, Hastings College of the Law from 1987 until 2012. From 2012 until his death in 2015, he served as the inaugural Daniel Webster...
Jun 8, 2017 | Volume 68, Issue 4
Malinda L. Seymore Volume 68, Issue 4, 817-868 Biology makes a mother, but it does not make a father. While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp...
Jun 8, 2017 | Volume 68, Issue 4
Amy Leah Holtz Volume 68, Issue 4, 869-908 The era of technology has provided a proliferation of new scientific and technological methods designed to assist individuals and couples to successfully conceive children when they otherwise would not be able to:...
Jun 8, 2017 | Volume 68, Issue 4
Victoria Vlahoyiannis Volume 68, Issue 4, 909-930 California is one of the largest economies in the world. It is home to many of the most successful companies in all sectors, especially health and technology. In recent years arbitration agreements, which have already...
Apr 13, 2017 | Volume 68, Issue 3
Elisabeth de Fontenay Volume 68, Issue 3, 445-502 From its inception, the federal securities law regime created and enforced a major divide between public and private capital raising. Firms that chose to “go public” took on substantial disclosure burdens, but in...
Apr 13, 2017 | Volume 68, Issue 3
Ji Li Volume 68, Issue 3, 503-540 Foreign direct investment (“FDI”) from emerging economies generally exhibits two distinct characteristics: (1) most of the investors thrive in poor regulatory environments, and (2) the visible hand of the state exerts a powerful...
