Subjects -> LAW (Total: 1397 journals)
    - CIVIL LAW (30 journals)
    - CONSTITUTIONAL LAW (52 journals)
    - CORPORATE LAW (65 journals)
    - CRIMINAL LAW (28 journals)
    - FAMILY AND MATRIMONIAL LAW (23 journals)
    - INTERNATIONAL LAW (161 journals)
    - JUDICIAL SYSTEMS (23 journals)
    - LAW (843 journals)
    - LAW: GENERAL (11 journals)

LAW (843 journals)            First | 1 2 3 4 5     

Showing 201 - 354 of 354 Journals sorted alphabetically
Evaluation Review     Hybrid Journal   (Followers: 8)
Evidence & Policy : A Journal of Research, Debate and Practice     Hybrid Journal   (Followers: 12)
Federal Law Review     Full-text available via subscription   (Followers: 48)
Feminist Legal Studies     Hybrid Journal   (Followers: 21)
feminists@law     Open Access   (Followers: 4)
Fiat Justisia     Open Access  
First Amendment Studies     Hybrid Journal  
Florida Bar News     Free  
Fordham Environmental Law Review     Open Access   (Followers: 4)
Fordham Intellectual Property, Media and Entertainment Law Journal     Open Access   (Followers: 17)
Fordham Law Review     Open Access   (Followers: 14)
Forensic Science International : Mind and Law     Open Access   (Followers: 4)
FORO. Revista de Ciencias Jurídicas y Sociales, Nueva Época     Open Access   (Followers: 2)
Frónesis     Open Access  
Geoforum     Hybrid Journal   (Followers: 25)
George Washington Law Review     Free   (Followers: 6)
Georgia State University Law Review     Open Access   (Followers: 2)
German Law Journal     Open Access   (Followers: 1)
Global Energy Law and Sustainability     Hybrid Journal  
Global Journal of Comparative Law     Hybrid Journal   (Followers: 4)
Global Labour Journal     Open Access   (Followers: 15)
Golden Gate University Environmental Law Journal     Open Access   (Followers: 3)
Golden Gate University Law Review     Open Access   (Followers: 2)
Graduate Law Journal     Open Access  
Grey Room     Hybrid Journal   (Followers: 16)
Griffith Law Review     Hybrid Journal   (Followers: 13)
GRUR International     Full-text available via subscription  
GSTF Journal of Law and Social Sciences     Open Access   (Followers: 2)
Hakam : Jurnal Kajian Hukum Islam dan Hukum Ekonomi Islam     Open Access  
Haramaya Law Review     Open Access   (Followers: 1)
Harvard Environmental Law Review     Free   (Followers: 12)
Harvard Human Rights Journal     Open Access   (Followers: 10)
Harvard Journal of Law & Public Policy     Free   (Followers: 34)
Harvard Journal of Law and Gender     Free   (Followers: 24)
Harvard Law Review     Free   (Followers: 93)
Hasanuddin Law Review     Open Access   (Followers: 2)
Hastings Law Journal     Free   (Followers: 8)
Health Matrix : The Journal of Law-Medicine     Open Access  
Helsinki Law Review     Open Access  
High Court Quarterly Review, The     Full-text available via subscription   (Followers: 3)
Hofstra Law Review     Open Access   (Followers: 2)
Horyzonty Polityki     Open Access  
Houston Law Review     Free   (Followers: 4)
Hukum Islam     Open Access  
IALS Student Law Review     Open Access   (Followers: 2)
IDÉIAS : Revista dos estudantes da Faculdade de Direito do Recife (UFPE)     Open Access  
IDP. Revista de Internet, Derecho y Politica     Open Access   (Followers: 2)
Ihering : Cuadernos de Ciencias Jurídicas y Sociales     Open Access   (Followers: 3)
Indian Law Review     Hybrid Journal  
Indiana Journal of Global Legal Studies     Full-text available via subscription  
Indiana Law Journal     Open Access   (Followers: 3)
Indigenous Law Bulletin     Full-text available via subscription   (Followers: 20)
Indigenous Peoples’ Journal of Law, Culture & Resistance     Open Access   (Followers: 2)
Indonesia Law Review     Open Access   (Followers: 2)
Indonesian Journal of Law and Society     Open Access   (Followers: 1)
Indonesian Journal of Legal and Forensic Sciences     Open Access   (Followers: 1)
Information & Communications Technology Law     Hybrid Journal   (Followers: 22)
InSURgência : revista de direitos e movimentos sociais     Open Access  
Inter: Revista de Direito Internacional e Direitos Humanos da UFRJ     Open Access  
Intergenerational Justice Review     Open Access  
International and Comparative Law Review     Open Access   (Followers: 4)
International Cybersecurity Law Review     Hybrid Journal   (Followers: 1)
International Data Privacy Law     Hybrid Journal   (Followers: 27)
International Free and Open Source Software Law Review     Open Access   (Followers: 6)
International Journal of Children's Rights     Hybrid Journal   (Followers: 22)
International Journal of Clinical Legal Education     Open Access  
International Journal of Culture and Modernity     Open Access  
International Journal of Disclosure and Governance     Hybrid Journal   (Followers: 6)
International Journal of Healthcare Policy     Hybrid Journal   (Followers: 1)
International Journal of Language & Law     Open Access   (Followers: 4)
International Journal of Law and Politics Studies     Open Access   (Followers: 1)
International Journal of Law Reconstruction     Open Access  
International Journal of Legal Information     Full-text available via subscription   (Followers: 48)
International Journal of Legal Medicine     Hybrid Journal   (Followers: 7)
International Journal of Liability and Scientific Enquiry     Hybrid Journal   (Followers: 2)
International Journal of Marine and Coastal Law     Hybrid Journal   (Followers: 18)
International Journal of Mental Health and Capacity Law     Open Access   (Followers: 1)
International Journal of Public Legal Education     Open Access  
International Journal of Punishment and Sentencing, The     Full-text available via subscription   (Followers: 8)
International Journal of Rural Law and Policy     Open Access   (Followers: 2)
International Journal of Speech Language and the Law     Hybrid Journal   (Followers: 11)
International Journal of Technology Policy and Law     Hybrid Journal   (Followers: 6)
International Journal of the Legal Profession     Hybrid Journal   (Followers: 9)
International Law Research     Open Access  
International Peacekeeping     Hybrid Journal   (Followers: 249)
International Sports Law Journal     Hybrid Journal   (Followers: 3)
International Theory: A Journal of International Politics, Law and Philosophy     Hybrid Journal   (Followers: 21)
IP Theory     Open Access   (Followers: 10)
Isonomía. Revista de Teoría y Filosofía del Derecho     Open Access  
Italian Review of Legal History     Open Access   (Followers: 2)
Iter Ad Veritatem     Open Access  
Iuris Dictio     Open Access  
Iuris Tantum Revista Boliviana de Derecho     Open Access  
Ius Canonicum     Full-text available via subscription  
Ius et Praxis     Open Access  
IUS ET SCIENTIA     Open Access  
IUSTA : Derecho, investigación, conflicto, prácticas jurídicas     Open Access  
James Cook University Law Review     Full-text available via subscription   (Followers: 4)
Jeffrey S. Moorad Sports Law Journal     Open Access   (Followers: 1)
JILS (Journal of Indonesian Legal Studies)     Open Access  
Jindal Global Law Review     Hybrid Journal  
John Marshall Law Review     Full-text available via subscription  
John Marshall Review of Intellectual Property Law     Free   (Followers: 8)
Journal for European Environmental & Planning Law     Hybrid Journal   (Followers: 5)
Journal of African Law     Full-text available via subscription   (Followers: 3)
Journal of Applied Law and Policy     Full-text available via subscription   (Followers: 3)
Journal of Banking Regulation     Hybrid Journal   (Followers: 27)
Journal of Business & Technology Law     Open Access   (Followers: 2)
Journal of Commonwealth Law and Legal Education     Hybrid Journal   (Followers: 5)
Journal of Conflict and Security Law     Hybrid Journal   (Followers: 18)
Journal of Digital Forensics, Security and Law     Open Access   (Followers: 1)
Journal of Dinamika Hukum     Open Access   (Followers: 1)
Journal of Empirical Legal Studies     Hybrid Journal   (Followers: 12)
Journal of Energy & Natural Resources Law     Hybrid Journal   (Followers: 5)
Journal of Environmental Law     Hybrid Journal   (Followers: 22)
Journal of Environmental Policy & Planning     Hybrid Journal   (Followers: 14)
Journal of European Consumer and Market Law     Hybrid Journal   (Followers: 6)
Journal of Gender, Social Policy & the Law     Open Access   (Followers: 22)
Journal of Human Security     Open Access   (Followers: 7)
Journal of Information Rights, Policy and Practice     Open Access  
Journal of Intelligent Transportation Systems: Technology, Planning, and Operations     Hybrid Journal   (Followers: 3)
Journal of International Peacekeeping     Hybrid Journal   (Followers: 213)
Journal of Intervention and Statebuilding     Hybrid Journal   (Followers: 9)
Journal of Islamic and Near Eastern Law     Open Access   (Followers: 3)
Journal of Law and Conflict Resolution     Open Access   (Followers: 4)
Journal of Law and Courts     Full-text available via subscription   (Followers: 7)
Journal of Law and Health     Open Access   (Followers: 7)
Journal of Law and Legal Reform     Open Access  
Journal of Law and Policy     Open Access   (Followers: 1)
Journal of Law and Regulation     Open Access  
Journal of Law and Religion     Full-text available via subscription   (Followers: 6)
Journal of Law and Social Policy     Open Access   (Followers: 3)
Journal of Law and Society     Hybrid Journal   (Followers: 43)
Journal of Law and the Biosciences     Open Access   (Followers: 3)
Journal of Law, Medicine & Ethics     Hybrid Journal   (Followers: 23)
Journal of Law, Policy and Globalization     Open Access   (Followers: 13)
Journal of Law, Religion and State     Hybrid Journal   (Followers: 4)
Journal of Legal Affairs and Dispute Resolution in Engineering and Construction     Full-text available via subscription   (Followers: 4)
Journal of Legal Analysis     Open Access   (Followers: 6)
Journal of Legal Anthropology     Open Access   (Followers: 1)
Journal of Legal Education     Open Access   (Followers: 7)
Journal of Legal Pluralism and Unofficial Law     Hybrid Journal   (Followers: 3)
Journal of Legal Studies     Full-text available via subscription   (Followers: 46)
Journal of Legal Studies     Open Access   (Followers: 8)
Journal of Legal Studies Education     Hybrid Journal   (Followers: 6)
Journal of Media Law     Hybrid Journal   (Followers: 7)
Journal of National Security Law & Policy     Free   (Followers: 6)
Journal of Nursing Law     Hybrid Journal   (Followers: 4)
Journal of Penal Law & Criminology     Open Access   (Followers: 2)
Journal of Perpetrator Research     Open Access   (Followers: 1)
Journal of Planning Education and Research     Hybrid Journal   (Followers: 13)
Journal of Police Crisis Negotiations     Hybrid Journal   (Followers: 10)
Journal of Politics     Full-text available via subscription   (Followers: 53)
Journal of Politics and Law     Open Access   (Followers: 9)
Journal of Property Research     Hybrid Journal   (Followers: 3)
Journal of Property, Planning and Environmental Law     Hybrid Journal   (Followers: 5)
Journal of Psychiatry & Law     Full-text available via subscription   (Followers: 10)
Journal of Supreme Court History     Hybrid Journal   (Followers: 8)
Journal of the National Association of Administrative Law Judiciary     Open Access   (Followers: 1)
Journal of Trafficking and Human Exploitation     Hybrid Journal   (Followers: 4)
Journal of Victimology and Victim Justice     Hybrid Journal  
Journal of World Energy Law & Business     Hybrid Journal   (Followers: 1)
Judicial Officers Bulletin     Full-text available via subscription   (Followers: 2)
Judicial Review     Full-text available via subscription   (Followers: 11)
Juridica International     Open Access  
Jurídicas CUC     Open Access  
Jurisdictie Jurnal Hukum dan Syariah     Open Access   (Followers: 1)
Jurisprudence     Hybrid Journal   (Followers: 17)
Jurist-Diction     Open Access  
Jurnal Akta     Open Access  
Jurnal Bina Mulia Hukum     Open Access  
Jurnal Cakrawala Hukum     Open Access  
Jurnal Cita Hukum     Open Access  
Jurnal Daulat Hukum     Open Access  
Jurnal Hukum & Pembangunan     Open Access  
Jurnal Hukum dan Pembangunan Ekonomi     Open Access  
Jurnal Hukum dan Peradilan     Open Access  
Jurnal Hukum Magnum Opus     Open Access  
Jurnal hukum Prasada     Open Access  
Jurnal Hukum Respublica     Open Access  
Jurnal Idea Hukum     Open Access  
Jurnal Ilmiah Pendidikan Pancasila dan Kewarganegaraan     Open Access  
Jurnal Jurisprudence     Open Access  
Jurnal Justisia : Jurnal Ilmu Hukum, Perundang-undangan dan Pranata Sosial     Open Access  
Jurnal Magister Hukum Udayana (Udayana Master Law Journal)     Open Access  
Jurnal Mimbar Hukum Fakultas Hukum Universitas Gadjah Mada     Open Access  
Jurnal Notariil     Open Access  
Jurnal Pembaharuan Hukum     Open Access  
Jurnal Repertorium     Open Access  
Jurnal Suara Keadilan     Open Access  
Jus Cogens : A Critical Journal of Philosophy of Law and Politics     Hybrid Journal  
Jussens Venner     Full-text available via subscription  
Justiça do Direito     Open Access  
Justice Research and Policy     Full-text available via subscription   (Followers: 1)
Justicia     Open Access  
Justicia Juris     Open Access  
Justitia et Pax     Open Access  
Kanun : Jurnal Ilmu Hukum     Open Access  
Kertha Patrika     Open Access  
Kertha Wicaksana     Open Access  

  First | 1 2 3 4 5     

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Hastings Law Journal
Journal Prestige (SJR): 0.637
Number of Followers: 8  

  Free journal Free journal
ISSN (Print) 0017-8322
Published by UC Hastings College of the Law Homepage  [1 journal]
  • The Political Economy of Foreign Sovereign Immunity
    • 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 these exceptions is for the commercial activity of foreign sovereigns. While underappreciated, various capitalist interests have comported with and been furthered by the FSIA. Applying a political economy lens, this Article demonstrates how the statutory framework for private litigation against foreign sovereigns has aligned with interests and prerogatives associated with particular stages of capitalist development—as evidenced by the historical evolution of foreign sovereign immunity doctrine and the FSIA’s eventual passage; the central role of the commercial activity exception in the foreign sovereign immunity scheme before and after the FSIA; and the ways courts have interpreted the FSIA’s commercial activity exception to privilege particular corporate interests and plaintiffs over other types of claims and claimants. While capitalism’s relationship with the FSIA is a story that has yet to be fully told, its telling benefits and enriches legal analysis and understanding of the FSIA itself and points the way to possible reforms of the statute.

      The post The Political Economy of Foreign Sovereign Immunity first appeared on Hastings Law Journal.Fri, 01 Apr 2022 05:09:27 +000
  • Studying Nonobviousness
    • 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 scholarship comes is to compare the results of their studies to those of others. As a result, in many legal fields, including intellectual property law, scholars lack a grounded understanding of how valid or reliable empirical legal studies really are.

      This Article examines the reliability of empirical studies of judicial decisions by closely comparing two recent studies of the patent law doctrine of nonobviousness. We find these studies provide robust results despite differences in the cases selected to include in each dataset. However, the amount of agreement varied for some data fields more than others. Particularly, there was more inter-study variability for fields that examined judicial reasoning than fields for decision outcomes. This finding provides some validation for the use of macro-level studies of judicial decision-making. To the best of our knowledge, this is the first analysis to directly compare the actual coding (as opposed to just the outcomes) of two different studies examining the same patent law doctrine.

      Building on the existing data, we also make an original contribution to the literature on nonobviousness by extending the time studied to the present. In contrast with studies examining the immediate period after the Supreme Court’s decision in KSR v. Teleflex, we find (1) a substantial decline in the number of 35 U.S.C. § 103 district court cases appealed to the Federal Circuit, (2) a higher rate at which courts deem the patent nonobvious, and (3) a high affirmance rate for district court determinations of both “obvious” and “nonobvious.”

      The post Studying Nonobviousness first appeared on Hastings Law Journal.Fri, 01 Apr 2022 05:03:22 +000
  • Thirteenth Amendment Echoes in Fourteenth Amendment Doctrine
    • 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 response to debates over the meaning of the Thirteenth Amendment; it was widely understood at the time of ratification as building upon the constitutional commitments embodied in the Thirteenth Amendment; and assumptions about liberty and equality more commonly associated with the Thirteenth Amendment have had a recurring, if underappreciated, influence on judicial interpretations of the Fourteenth Amendment.

      I trace these Thirteenth Amendment influences on the Fourteenth Amendment from Reconstruction to some of the Supreme Court’s most important twentieth-century racial discrimination cases—such as Buchanan v. Warley, Shelley v. Kraemer, and Brown v. Board of Education—and through more recent decisions, including Obergefell v. Hodges, that extend constitutional antidiscrimination protections beyond race. Once we recover these recurrent, consequential, but rarely acknowledged Thirteenth Amendment echoes in Fourteenth Amendment doctrine, we can recognize the existence of a constitutional principle that operates alongside the tiers-of-scrutiny approach that dominates modern Fourteenth Amendment doctrine. This principle—which I label the principle of equality of rights—modulates the strength of the nondiscrimination requirement to account for the importance of the sphere of activity at issue. Despite its simplicity and intuitive attractiveness, and its foundations in the original understanding of the Fourteenth Amendment, the equality of rights principle has proven deeply unsettling across time, feared both for its potential to radically expand the reach of constitutional antidiscrimination norms and its potential to excessively constrain these norms. I argue that if constitutional law were to recognize and accept this principle, our Fourteenth Amendment doctrine would better reflect foundational commitments of Reconstruction, better explain the Court’s most consequential interpretations of the Equal Protection Clause, and better serve the needs of a nation still struggling to realize the emancipatory vision of the Thirteenth Amendment.

      The post Thirteenth Amendment Echoes in Fourteenth Amendment Doctrine first appeared on Hastings Law Journal.Fri, 01 Apr 2022 04:49:38 +000
  • Trade Secrecy and Innovation in Forensic Technology
    • 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 through trial and sentencing. Such tools allow prosecutors to leverage imperfect forensic evidence, such as DNA mixtures, smudged fingerprints, and grainy video footage. Probabilistic software tools unavoidably rely on potentially contestable assumptions, parameters, and implementation choices. Judicially recognized trade secrecy in criminal cases impedes scrutiny of these tools by defendants and the public. Previous critics have focused on secrecy’s potential to undermine the integrity and fairness of the criminal justice system, invoking the constitutional constraints of criminal procedure, as well as the traditional accuracy and fairness grounds of evidentiary rules. This Article takes a complementary perspective, arguing that trade secrecy against court-mandated disclosure is also unlikely to advance the recognized goals of trade secrecy law. There is thus certainly no basis for courts to assume that the social benefits of trade secrecy outweigh the potential for injustice created by withholding information needed for adversarial vetting of the reliability of forensic evidence tools.

      The post Trade Secrecy and Innovation in Forensic Technology first appeared on Hastings Law Journal.Fri, 01 Apr 2022 04:43:44 +000
  • Identifying and Countering Fake News
    • 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 actors with varying goals, rapidly distributed by platforms motivated more by financial incentives than by journalistic norms or the public interest, and eagerly consumed by users who wish to reinforce existing beliefs. Yet even as awareness of the problem grew after the 2016 U.S. presidential election, the meaning of the term “fake news” has become increasingly disputed and diffused. This Article first addresses that definitional challenge, offering a useful taxonomy that classifies species of fake news based on two variables: their creators’ motivation and intent to deceive. In particular, it differentiates four key categories of fake news: satire, hoax, propaganda, and trolling. This analytical framework can provide greater rigor to debates over the issue.

      Next, the Article identifies key structural problems that make each type of fake news difficult to address, albeit for different reasons. These include the ease with which authors can produce user-generated content online and the financial stakes that platforms have in highlighting and disseminating that material. Authors often have a mixture of motives in creating content, making it less likely that a single solution will be effective. Consumers of fake news have limited incentives to invest in challenging or verifying its content, particularly when the material reinforces their existing beliefs and perspectives. Finally, fake news rarely appears alone: it is frequently mingled with more accurate stories, such that it becomes harder to categorically reject a source as irredeemably flawed.

      Then, the Article classifies existing and proposed interventions based upon the four regulatory modalities catalogued by Larry Lessig: law, architecture (code), social norms, and markets. It assesses the potential and shortcomings of extant solutions.

      Finally—and perhaps most importantly—the Article offers a set of model interventions, classified under the four regulatory modalities, that can reduce the harmful effects of fake news while protecting interests such as free expression, open debate, and cultural creativity. It closes by assessing these proposed interventions based upon data from the 2020 election cycle.

      The post Identifying and Countering Fake News first appeared on Hastings Law Journal.Fri, 01 Apr 2022 04:38:32 +000
  • Dropping the Other Shoe: Personal Jurisdiction and Remote Technology in
           the Post-Pandemic World
    • 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 when the pandemic comes to its end, the shift it caused towards remote interactions and the question of how these interactions affect personal jurisdiction will continue as society enters the post-pandemic world. The now-outdated Internet-specific test that lower courts created more than twenty years ago has caused more confusion than clarity and no longer suits the technology of a rapidly evolving society. As the new norm, remote interactions and virtual contacts can fit within the traditional personal jurisdiction doctrines on the same—even surer—footing as physical contacts.

       This Note argues that virtual contacts should support a finding of personal jurisdiction and offers a solution that uses the familiar tools from International Shoe and its progeny to analyze technology-based connections in the post-pandemic world and beyond. Through three approaches, this Note posits a more coherent doctrine that combines its traditions with the realities of an ever-evolving society and provides an answer as courts, commentators, and civil procedure enthusiasts wait for the Internet-jurisdiction shoe to drop.

      The post Dropping the Other Shoe: Personal Jurisdiction and Remote Technology in the Post-Pandemic World first appeared on Hastings Law Journal.Fri, 01 Apr 2022 04:30:50 +000
  • Avatar and Derivative Works: Harmonizing the Interests of Creators and
    • 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 influx of creative content derived from those spaces being widely shared and enjoyed by millions across the country. As instances of works featuring virtual worlds and our virtual representations within those worlds become more frequent, it becomes imperative that there be a clear delineation on what protections govern those expressions within and concerning those virtual spaces. Can an avatar be copyrighted? When a user creates an avatar and uses that avatar to create a separate work, is that work separately protectable? Between End User Licensing Agreements, Terms of Use, and social practices that govern virtual spaces, it is an increasingly complex landscape for those who want to create original content to navigate.

      This note explores these questions and suggests a preliminary response regarding what the law should be with respect to the use of avatars in derivative and original works of authorship. First, avatars are copyrightable, to a certain extent and within certain circumstances. Copyright ownership of avatars and virtual representations should be clearly defined to account for the creation of content that feature avatars as the primary subjects. Second, regardless of whether an avatar can be copyrighted in its virtual space of origin, content creators should be given the right to ownership over works that they create using avatars taken out of their respective virtual worlds. To avoid stifling creativity in the new age of virtual creation, there must be clear guiding principles that allow for creators to make use of the virtual representations they inhabit without running the risk of retaliation from the creators of those virtual spaces.

      The post Avatar and Derivative Works: Harmonizing the Interests of Creators and Consumers first appeared on Hastings Law Journal.Fri, 01 Apr 2022 04:25:39 +000
  • When Hospitals Sue Patients
    • 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 standards, and fostering innovation, hospitals’ influence over health care delivery and access is unmatched. They are the behemoth in the delivery chain, exerting unrivaled control.

      As such, hospitals have naturally become the locus of the worst of the collision between consumerism and universality, between cost and access—a gloomy setting for citizens who simply cannot afford the health care they need to flourish, or to survive. Indeed, the price of American health care—a cost that is increasingly borne by American patients—is unsustainable. Those costs continue to rise thanks to a pernicious mix of increasingly brittle and ineffective insurance plans, a squeeze on public funding, and a lack of price sensitivity among the providers of American health care. Patients are suffering. And hospitals are not getting paid.

      In a predictable but catastrophic turn, hospitals are suing their former patients for unpaid medical bills. Litigation has replaced systematic financing. The operating room has been swapped for the courtroom. And adversarial proceedings now follow the Hippocratic Oath.

      Tracking the phenomenon of these lawsuits, this Article lays out the harms that result to the American health care system. When hospitals sue patients, they harm public health and destroy patient trust. And they shatter widely held beliefs, highlighting the inadequacy of policy goals and the inequity of health finance rules.

      Further, once and for all, they expose the failure of the consumer-based paradigm of American health care, spotlighting the inapplicability of moral hazard and demonstrating the means by which individuals with private insurance and high deductibles—a rapidly growing population in the United States—are inadequately protected against the very actors that undertake to protect their health and wellbeing. This Article makes the moral, legal, and policy-based argument that hospital lawsuits against former patients must be brought to an end. American patients simply cannot afford it.

      The post When Hospitals Sue Patients first appeared on Hastings Law Journal.Thu, 17 Feb 2022 07:13:21 +000
  • Weaponizing Culture to Undermine International Women’s Rights
    • Lan Cao

      Volume 73, Issue 2, 233-300

      The Universal Declaration of Human Rights (“UDHR”) remains an emblem of hope and change in a world filled with continuing human rights violations. Its promise, enshrined in 1948, is as relevant then as it is now—that the international community would no longer allow a state’s brutal treatment of its own citizens to go unchallenged under the mantle of “sovereignty.”

      But the UDHR is being challenged by authoritarians and dictators who rightly see the UDHR as an international check on their tyranny. It is also being questioned by Western communitarians who ironically see the UDHR’s enshrinement of international human rights as an intrusive Western cultural projection onto the rest of the world. This supposedly pro-culture position is founded on the charge that human rights has been so unduly expanded that the international rights project has become arrogant, riding roughshod over the non-Western world.

      This Article argues against the notion that international human rights has to accommodate cultural practices that are themselves detrimental to human rights. In such instances, cultural exceptions whittle away the very principle of human rights and equally significant, they are especially detrimental to women’s rights. Indeed, many of the practices that deny women freedom, equality, and basic human dignity are defended on “tradition” and “culture.”

      Critics have even exploited social psychology studies showing not just cultural but even cognitive differences between Westerners in “thin” societies (individualistic) and East Asians in “thick” societies (individuals embedded in communities). This Article is a defense of universal values common to all humans, regardless of politics or psychology. As noted, this is crucial for international human rights, and more specifically for women’s rights because culture has been singularly weaponized against women; calls for cultural preservation continue to be leveraged to ensure traditional values and practices that subordinate women can remain outside the purview of the UDHR. Yet, the historical record shows that the drafters scoured a wide range of non- Western traditions, and two of its main drafters were P. C. Chang, a Confucian Chinese diplomat and Charles Habib Malik, an Arab philosopher who were intentional in balancing pluralism with universalism.

      The concern that culture is not sufficiently accommodated rings hollow calls to protect culture have been rejected in other areas of law such as international trade and law and development. Moreover, cultural preservation is an oxymoron—culture itself is not homogeneous or contained but rather has heterogeneous layers that are fluid and evolving. Paradoxically, even as critics defend cultural pluralism and diversity, their understanding of culture is based on its most narrow, homogeneous version, one founded on demands for purity and unchanging sameness. In essence, the Article demonstrates that calls for cultural protection function as a proxy for ensuring the continued subordination for women worldwide.

      The post Weaponizing Culture to Undermine International Women’s Rights first appeared on Hastings Law Journal.Thu, 17 Feb 2022 07:09:10 +000
  • A New Prescription for the Opioid Epidemic: 360-Degree Accountability for
           Pharmaceutical Companies and Their Executives
    • Rebecca A. Delfino

      Volume 73, Issue 2, 301-370

      We can no longer ignore this—a national crisis resulting in almost one million American deaths, costing hundreds of millions of dollars, ravaging the health care system, and devastating state and local communities. This narrative describes the COVID-19 pandemic and something else: the epidemic of opioid addiction and abuse. In the last twenty years, the opioid epidemic claimed the lives of more than 700,000 people at the cost of more than 500 billion dollars to the economy. The COVID-19 pandemic has made the opioid epidemic worse, causing a staggering increase in opioid-related overdose deaths. Even now, on average, 140 people die every day from an opioid overdose, making it a leading cause of injury-related death in the United States. And 70% of those deaths involve a prescription opioid.

      There is a growing sense that those responsible for the opioid epidemic, specifically drug companies and their executives, have escaped responsibility for their dangerous and deceptive practices in manufacturing and marketing opioids. Although they have confronted civil lawsuits, the pharmaceutical industry has faced virtually no criminal scrutiny; only a couple of companies and executives have ever been criminally charged for the devastation that opioids have caused. This raises questions: Given the increasing number of opioid overdose deaths nationally, why are charges and convictions of drug companies and their executives so rare? And why have existing legal mechanisms not worked to punish the improper manufacturing and marketing practices and curb the epidemic? Their misconduct continues because no single federal law exists to prosecute pharmaceutical companies and their executives for causing the epidemic. And existing laws are ineffective; they fail to criminalize the type of conduct that caused the epidemic, contain elements prohibitively difficult to prove, or impose minimal penalties that fail to deter bad actors. Thus, the drug industry has persisted in dubious practices unfettered by civil litigation, government enforcement actions, and fines. This Article seeks to examine these issues and others. It is the first in legal scholarship to offer a concrete and omnibus solution grounded in federal law to address the pharmaceutical industry’s misconduct. The novel 360-degree solution proposed here—the “Controlled Substance Manufacturing and Marketing Accountability Act”—will deter and punish those pharmaceutical companies and their executives who provided misleading information to government regulators and used deceptive practices in marketing opioids to the public. It also recognizes that when properly prescribed, these drugs provide essential relief for pain and suffering. Thus, this Proposal seeks to address prior misconduct and point the way forward to avoid the next drug epidemic.

      The post A New Prescription for the Opioid Epidemic: 360-Degree Accountability for Pharmaceutical Companies and Their Executives first appeared on Hastings Law Journal.Thu, 17 Feb 2022 07:05:25 +000
  • Liberty and Democracy Through the Administrative State: A Critique of the
           Roberts Court’s Political Theory
    • Blake Emerson

      Volume 73, Issue 2, 371-436

      The values of liberty and democracy repeatedly arise in recent Supreme Court opinions on administrative law. The conservative Justices have argued that the power vested in government agencies threatens individual freedom and collective self-government. This Article critiques these Justices’ use of political theory. It shows that the Justices do not faithfully and even-handedly apply the complex tradition of American political thought on which they rely. They invoke several different and competing aspects of liberty and democracy to criticize the administrative state. But because the Justices do not disentangle the various aspects of these two values from one another, they draw faulty inferences about how best to protect them. Furthermore, they do not acknowledge the ways in which properly structured administrative power promotes liberty and democracy. They thereby aggrandize judicial power at the expense of the elected branches without effectively promoting individual autonomy.

      This Article argues for a more rigorous, tailored, and nuanced application of the values of liberty and democracy in public law. It demonstrates that the Court should not rely on these values to justify constitutional rules concerning the balance between legislative and executive power. Because liberty and democracy each have multiple and competing dimensions, it is difficult if not impossible in these contexts for the Court to draw firm, generalizable conclusions about how these values on the whole will best be advanced. Even where certain liberty or democracy interests may be put at risk by legislative delegation to the executive or by legislative insulation of agencies from presidential control, such arrangements at the same time promote other aspects of these same values. The Court would be justified in tailoring judicial deference so as to protect procedural fairness, which falls within the judiciary’s core institutional competence. Ultimately, however, the Court should not have exclusive or even primary custody over the meaning and application of liberal and democratic values. It should be a task for the people and the elected branches to safeguard these values in the structures and purposes of government.

      The post Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory first appeared on Hastings Law Journal.Thu, 17 Feb 2022 06:49:06 +000
  • Dismantling the Master’s House: Establishing a New Compelling Interest
           in Remedying Systematic Discrimination
    • Chris Chambers Goodman and Natalie Antounian

      Volume 73, Issue 2, 437-474

      This Article proposes a new compelling interest to justify affirmative action policies. Litigation has been successful, to a point, in preserving affirmative action, but public support of the diversity and inclusion rationales for race-conscious policies is waning. Equity abhors a vacuum, and so this Article promotes a return to remedial justifications for affirmative action programs and policies. It begins with an overview of the strict scrutiny standard, providing background on what constitutes compelling government interests, and what meets the narrowly tailoring element. After exploring the Court’s dismantling of the societal discrimination justification for affirmative action programs, this Article makes the case that remedying systemic discrimination is equivalent to remedying past and present discrimination. Therefore, it should qualify as a compelling government interest. Next, it analyzes the evidence showing how existing affirmative action policies help combat the effects of institutional discrimination through the lens of the litigation at the University of North Carolina, and the Harvard trial, and contrasts the outcomes at the UCs after Proposition 209. The potential sunset of the diversity justification in higher education means that other strategies must be developed now, to fill the void that could occur by 2028, or much sooner as petitions for review are being considered by the Supreme Court as this Article is going to print. The Article concludes by opening the door to the discussion of alternative, non-litigation strategies for maintaining and enhancing affirmative action with a model statute, building off the requirements in Title VI.

      The post Dismantling the Master’s House: Establishing a New Compelling Interest in Remedying Systematic Discrimination first appeared on Hastings Law Journal.Thu, 17 Feb 2022 06:43:20 +000
  • Taking Stock: Open Questions and Unfinished Business Under the VAWA
           Amendments to the Indian Civil Rights Act
    • Jordan Gross

      Volume 73, Issue 2, 475-528

      The primary statutory tool for federal regulation of Tribal court criminal procedure is the Indian Civil Rights Act of 1968 (ICRA). ICRA replicated most of the procedural protections in the Bill of Rights applicable to the States, as then interpreted by the Supreme Court. ICRA also sets out procedures Tribes must extend to criminal defendants in their courts, caps their sentencing authority, and defines their criminal jurisdiction.

      Some parts of Indian country are the most dangerous places in the United States today, particularly for indigenous women and girls. They are exposed to a higher level of personal violence than any other women in the United States, mostly at the hands of non-Indians. This situation is due, in large measure, to jurisdictional voids in Indian country created by federal law.

      Congress has amended ICRA four times since 1968. In 2010 it amended ICRA with the Tribal Law and Order Act (TLOA). TLOA authorized Tribes to exercise expanded sentencing authority if they adopt and implement additional criminal procedural protections beyond those required under the 1968 version of ICRA. Congress amended ICRA again in 2013 with the Violence Against Women Re-Authorization Act (VAWA 2013). These amendments provide Tribes a pathway for re-asserting criminal jurisdiction over non-Indians for the first time in generations. VAWA 2013 recognizes Tribes’ inherent authority to exercise jurisdiction over all persons who commit crimes in Indian country, but limits the reach of that jurisdiction to crimes involving dating or domestic violence or violations of protection orders. This is labeled “special domestic violence criminal jurisdiction” (SDVCJ). To exercise SDVCJ, a Tribe must adopt the procedural protections required by TLOA, and additional procedural protections required by VAWA 2013.

      VAWA 2013 cabins SDVCJ in three ways, it: (1) creates an exception for crimes that only involve non-Indians as victims and perpetrators, (2) creates an exception for non-Indian defendants who lack ties to the Tribal community in which they commit their crimes, and (3) limits the offenses to which SDVCJ extends. These exceptions and limitations incorporate facts and circumstances that are often referred to as “jurisdictional.”

      The post Taking Stock: Open Questions and Unfinished Business Under the VAWA Amendments to the Indian Civil Rights Act first appeared on Hastings Law Journal.Thu, 17 Feb 2022 06:27:30 +000
  • Saving the Sinking Ship: How the United States Can Create an Effective
           Content Moderation Policy by Looking Abroad
    • Zhi Yang Tan

      Volume 73, Issue 2, 529-558

      Each day, the world creates another 2.5 quintillion bytes of data, with most of it being accessible by the average person through the smartphone they carry in their pocket. That data may often take the form of informative new articles or funny cat videos, but also hidden within that sea of information is content designed for more malicious purposes. While much of the world, and especially the U.S., has historically taken a laissez-faire approach to moderating online content, such an approach is quickly becoming outdated and ineffective as more people are exposed to disinformation or hate speech online, which can have effects that spill over into the real world. Governments and platforms are therefore facing the difficult problem of how to best limit this harmful content while not stifling the power of the internet as a tool for expression. Many other countries in the last decade have begun abandoning the laissez-faire approach and are developing their own solutions to online content moderation.

      This Note presents an international typography of those approaches. It groups them into three general categories: platform-focused regulations meant to encourage platforms to properly moderate, user-focused regulations that punish citizens that create or disseminate harmful content, and education-based reforms that aim to create a more informed populace. Then, it examines in detail how each are implemented and their potential strengths and weaknesses. Finally, it proposes potential reforms for the U.S. that combines all three approaches in a way that empowers governments, platforms, and citizens themselves to address the problems cooperatively without engaging in state-sponsored censorship and abandoning important free speech principles in the process.

      The post Saving the Sinking Ship: How the United States Can Create an Effective Content Moderation Policy by Looking Abroad first appeared on Hastings Law Journal.Thu, 17 Feb 2022 06:18:36 +000
  • Dispute Resolution Commercial Transactions Along the Belt and Road:
           Creating Fair and Consistent Judgments
    • Sara Zokaei

      Volume 73, Issue 2, 559-584

      For over forty years, China has promulgated national policies of opening-up and cooperation with other nations. Over the past eight years, China has been expanding its efforts to uphold these policy goals via the Belt and Road Initiative, China’s global infrastructure project. With this increase in international economic activity and commercial transactions, China has recognized the need for judicial reform to better serve the legal needs of foreign parties. Given China’s preference for peaceful cooperation, arbitration, and mediation, reform was necessary to cater to the needs of foreign parties who prefer litigation.


      In parallel with the Belt and Road Initiative, China has expanded its domestic dispute resolution mechanisms to provide broad legal resources for Belt and Road transacting parties. China has outlined its commitment to provide a fair, predictable, and law-based business environment for international parties in a series of opinions issued by the Supreme People’s Court of China. Further, China has forged key legal instruments to support its commitment to provide fair and consistent court judgments: (1) establishment of the International Commercial Courts; (2) issuance of BRI-specific guiding cases, and (3) commitment to expanded application of the principle of reciprocity in the enforcement of foreign judgments.


      While China’s extensive domestic judicial reform, to some extent, has been consistent with its promulgated policies and Belt and Road goals, the vagueness of the Supreme People’s Court opinions outlining the reforms still present distinct logistical challenges to achieving fair, predictable, and consistent court judgments. As a result, Belt and Road parties choosing to litigate their international commercial disputes may face hurdles in their pursuit of fair and predictable legal protections in court.



      The post Dispute Resolution Commercial Transactions Along the Belt and Road: Creating Fair and Consistent Judgments first appeared on Hastings Law Journal.Thu, 17 Feb 2022 05:49:21 +000
  • The Psychology of Secret Settlements
    • Gilat Juli Bachar

      Volume 73, Issue 1, 1-48

      The #MeToo movement called attention to the use of non-disclosure clauses in settlement agreements as a tool to silence victims of sexual wrongdoing by repeat offenders such as movie mogul Harvey Weinstein and Olympic gymnast doctor Larry Nassar. The exposure of such secret settlements prompted a fierce policy and scholarly debate on the legitimacy and desirability of NDAs. Though the risk of NDAs hindering accountability is hardly new, NDAs are now increasingly the subject of legislative action, in states ranging from California and New York to Nevada and Tennessee. But should all NDAs be banned or limited by sunshine-in-litigation laws? And will such legislation adequately reflect the public’s attitudes regarding what it wishes (and doesn’t wish) to know? Existing legal scholarship on the regulation of sexual harassment NDAs fails to benefit from the theoretical wisdom and empirical methods which psychological research can offer regarding these questions.

      This Article is the first to empirically identify psychological factors affecting lay attitudes towards secret settlements. Using a survey experiment conducted with a large representative sample, it brings to light the mechanisms underlying the public’s tendency to seek information or remain in the dark regarding sexual harassment. The findings suggest that, counter to existing psychological theories, lay people actually prefer public disclosure of arguably the most uncomfortable information. Furthermore, according to the findings, the severity of the wrongdoer’s misconduct and the victim’s financial status each have an independent negative effect on lay people’s endorsement of NDAs.

      These empirical findings will allow legislatures to regulate secret settlements in a manner that appropriately embodies the scope of the public’s right to know. Such regulation will in turn help preserve both employees’ willingness to come forward about sexual harassment and employers’ inclination to settle. Moreover, these findings should encourage victim advocates to explore ways to maintain disadvantaged victims’ bargaining power under a confidentiality ban regime. Prudent advocacy would help ensure that the choice between settlement and trial remains available to financially unstable victims. The findings further show the potential promise of bipartisan collaboration over sunshine-in-litigation laws, at least when it comes to severe acts of sexual harassment.

      The post The Psychology of Secret Settlements first appeared on Hastings Law Journal.Wed, 19 Jan 2022 09:28:43 +000
  • The Federal Response to COVID-19: Lessons from the Pandemic
    • Nancy J. Knauer

      Volume 73, Issue 1, 49-104

      When the first suspected human-to-human transmission of the novel coronavirus was reported in January 2020, the United States had in place an elaborate set of pandemic disaster and response plans that spanned hundreds of pages. The George W. Bush administration spearheaded national pandemic planning in 2005 as part of the post-September 11 efforts to modernize the country’s disaster response capabilities. Subsequent administrations revisited and revised the various pandemic plans, including the Trump administration as recently as 2017 and 2018.

      Despite these detailed plans, the Trump administration was slow to respond to the emerging public health crisis or implement any of the prescribed protocols. Federal officials lost valuable time as they downplayed the risk posed by COVID-19 and repeatedly assured the American people that the virus would simply “go away.” By March 2020, a frightening spike in cases in the Northeast made the pandemic impossible to ignore. President Trump and other administration officials shifted tactics and began to characterize COVID-19 as the quintessential “black swan”—a threat that no one could have foreseen. President Trump repeatedly told the American people that “no one could have predicted something like this” even though official federal policy suggested a very different story. Far from being a black swan, the COVID-19 pandemic was widely anticipated and, according to many epidemiologists, inevitable.

      This Article argues that our botched federal response was not so much a failure of policy per se, but rather a failure of political will. The federal government had a robust pandemic policy in place; it simply chose not to follow it. This failure of political will illustrates the dangers that arise when public health measures are politicized and weaponized for partisan advantage and demands strong interventions to ensure federal accountability and transparency. The first Part of this article outlines the evolution of our national pandemic plans within the broader context of disaster and response planning. The second Part explains the pandemic staging framework that is used to organize and coordinate decisionmaking within a pandemic. The third Part charts the federal response during the crucial first three months of the public health crisis, specifically identifying instances where the federal government failed to follow its own clearly articulated pandemic policy. The final Part outlines some lessons learned from the pandemic and proposes reforms to insulate public health measures from partisan wrangling and keep our federal government faithful to its foremost obligation; namely, to promote the general welfare.

      The post The Federal Response to COVID-19: Lessons from the Pandemic first appeared on Hastings Law Journal.Wed, 19 Jan 2022 09:24:31 +000
  • What Got Us Here, Won’t Get Us There: Why U.S. Commercial Space Policy
           Must Lie in an Independent Regulatory Agency
    • Gerardo Inzunza Higuera

      Volume 73, Issue 1, 105-158

      This Note addresses the need for a comprehensive, centralized independent agency designated solely for the management of commercial space activities. The current commercial “space rush” promises unimaginable possibilities and profits for a burgeoning sector, yet no single federal agency has been entrusted with the regulation of this nascent industry. Currently, the United States has settled into an inefficient, fragmented regulatory approach that unduly burdens commercial players and frustrates its national objective of fostering a robust commercial low-Earth orbit economy. This Note analyzes proposals by Congress for such a new regulatory agency and concludes by proposing a new framework that encourages expert-driven commercial space regulations void of political adulteration, while also establishing a regulatory system that can be exported to other spacefaring nations.

      The post What Got Us Here, Won’t Get Us There: Why U.S. Commercial Space Policy Must Lie in an Independent Regulatory Agency first appeared on Hastings Law Journal.Wed, 19 Jan 2022 09:16:02 +000
  • How Can I Ever Repay You' The Borrower’s Dilemma and a Tax-Based
           Solution to the Student Debt Problem
    • Kate Souza

      Volume 73, Issue 1, 129-160

      The growing cost of higher education relative to wage growth means that college is no longer the sure path to financial security it once was. While the cost of tuition ballooned over the past several decades, government funding for higher education diminished. Students have made up the difference by borrowing more. For many borrowers, large student loans result in unmanageable debt that makes their financial futures less secure. Student debt also harms society and the economy. If the government wants Americans to continue to have access to higher education, it must find ways to make higher education more affordable.

      Politicians recognize the problems posed by the current historic levels of student loan debt. They recently proposed to cancel large swaths of student loan debt. However, debt cancellation is not a good solution. It is expensive, unfair, and offers mere temporary relief from a problem that will continue to plague future borrowers. A better solution would offer lasting relief.

      To alleviate the student debt problem, the government should allow borrowers to repay their student loans using pre-tax dollars. This would enable borrowers to keep more of their income, while incentivizing both the pursuit of higher education and the repayment of student loans. Regardless of whether President Biden or Congress cancels a portion of student loan debt, the government should ease problematic financial burdens on student loan borrowers by allowing them to use pre-tax funds to repay their debt.

      The post How Can I Ever Repay You? The Borrower’s Dilemma and a Tax-Based Solution to the Student Debt Problem first appeared on Hastings Law Journal.Wed, 19 Jan 2022 09:09:49 +000
  • The United States’ Ineffective Response Towards Hong Kong’s
           National Security Law
    • Justine Yu

      Volume 73, Issue 1, 161-190

      The city of Hong Kong has undergone a dramatic political shift in recent years. Once known as a safe haven for freedom of speech and expression, [1] HK is now a place where anti-Communist Party views are suppressed under the National Security Law. [2] The imposition of national security legislation over HK drew wide criticism from Western nations and pro-Democracy activists. This Note will focus specifically on the United States’ response and critique its shortcomings in response to the NSL. Because the current U.S. approach fails to achieve its desired outcome of upholding HK autonomy and democracy, this Note will also set forth a recommendation for how the United States should respond moving forward to obtain a more favorable outcome.


                [1].  Jin Wu & Elaine Yu, What You Can No Longer Say in Hong Kong, N.Y. Times (Sept. 4, 2020),

                [2].  Hong Kong: Beijing Dismantles a Free Society, Hum. Rts. Watch (June 25, 2021, 8:00 AM),

      The post The United States’ Ineffective Response Towards Hong Kong’s National Security Law first appeared on Hastings Law Journal.Wed, 19 Jan 2022 01:39:47 +000
  • Expanding Accountability: Using the Negligent Infliction of Emotional
           Distress Claim to Compensate Black American Families Who Remained Unheard
           in Medical Crisis
    • Nia Johnson

      Volume 72, Issue 6, 1637-1663

      Black Americans have constantly been victims of health disparities and unequal treatment in healthcare facilities. This is not new. However, more attention has been paid to accounts from Black Americans alleging that their providers ignored them or their families in crisis, leading to grave consequences. Though we do have a medical malpractice system that is equipped to remedy physical manifestations of medical negligence, there has been minimal dialogue about how to hold provider accountable for more abstract medical grievances like ignoring Black patients. This Article argues that the negligent infliction of emotional distress claim is an appropriate forum to address this issue.

      The post Expanding Accountability: Using the Negligent Infliction of Emotional Distress Claim to Compensate Black American Families Who Remained Unheard in Medical Crisis first appeared on Hastings Law Journal.Thu, 12 Aug 2021 05:58:30 +000
  • Secrets, Lies, and Lessons from the Theranos Scandal
    • Lauren Rogal

      Volume 72, Issue 6, 1663-1702

      Theranos, Inc., the unicorn startup blood-testing corporation, was ultimately laid low by a former employee whistleblower. The experience of that whistleblower during and after her employment illuminates detrimental secrecy practices within the startup sector, as well as legal and practical barriers to corporate accountability. Theranos sought to avoid exposure by cultivating an environment of secrecy and intimidation, and by aggressively extracting and enforcing non- disclosure agreements. The legal landscape for whistleblowers facilitated this strategy: while whistleblowing employees enjoyed certain protections under anti-retaliation statutes, trade secrets statutes, and common law contract principles, these protections were neither readily accessible nor certain. This Article critically examines the contours and ambiguities of those legal frameworks, using the Theranos case study, and offers observations on the need for a harmonized public policy to facilitate private sector whistleblowing.

      The post Secrets, Lies, and Lessons from the Theranos Scandal first appeared on Hastings Law Journal.Thu, 12 Aug 2021 05:48:22 +000
  • The Intersectional Race and Gender Effects of the Pandemic in Legal
    • Angela Onwuachi-Willig

      Volume 72, Issue 6, 1703-1716

      Just as the COVID-19 pandemic helped to expose the inequities that already existed between

      students at every level of education based on race and socioeconomic class status, it has

      exposed existing inequities among faculty based on gender and the intersection of gender and

      race. The legal academy has been no exception to this reality. The widespread loss of

      childcare and the closing of both public and private primary and secondary schools have

      disproportionately harmed women law faculty, who are more likely than their male peers to

      work a “second shift” in terms of childcare and household responsibilities. Similarly, women

      law faculty were more likely to feel the effects of the financial exigencies that universities and

      law schools faced during the pandemic because of their disproportionate representation in

      non-secure, meaning non-tenure-stream, faculty positions. Furthermore, the rapid switch to

      remote teaching and learning, particularly during spring 2020, had a more detrimental effect

      on women in part because of the persistent gender bias that women law faculty, who teach a

      larger percentage of required and survey courses, encounter in student teaching evaluations

      and in part because women tend to be more engaged in the mental health and emotional

      caretaking of students, which significantly increased during the pandemic. Even the actions

      that law schools took during the pandemic to provide relief to faculty, such as automatic

      extensions to the tenure clock for all faculty, place women more at risk than men for harmful

      impacts on factors like pay equity. In all, this Essay briefly analyzes how factors such as

      limited childcare, remote learning, the greater caretaking needs of students, plus other

      pandemic-related effects, have worked to exacerbate previously existing gender and

      intersectional gender and race inequities between men and all women in legal academia and

      between white men and women of color.

      The post The Intersectional Race and Gender Effects of the Pandemic in Legal Academia first appeared on Hastings Law Journal.Thu, 12 Aug 2021 05:42:35 +000
  • Why Familial Searches of DNA Databases Can and Should Survive Carpenter
    • Jasper Ford-Monroe

      Volume 72, Issue 6, 1717-1740

      Over the past few years, a powerful new forensic technique has emerged. By uploading DNA from a crime scene to a civilian DNA database, such as GEDmatch, investigators can discover the genetic relatives of the perpetrator and thereby track down the perpetrator himself. This procedure is known as forensic genetic genealogy searching (FGGS), and in under three years it has cracked numerous decades-old cases once thought to be unsolvable.

      Concerned about genetic privacy and discrimination, most legal commentators have thus far confronted FGGS with raised hackles. They either argue FGGS is a Fourth Amendment search under Carpenter , or that it escapes Carpenter but ought to be severely restricted or prohibited by statute.

      This Note attempts to show both that FGGS is not a Fourth Amendment search under Carpenter , and that public policy supports its use to the fullest practicable extent. On the doctrinal side, FGGS is distinguishable on every point from the location information at issue in Carpenter . On the practical side, FGGS is of immense forensic value, and the existence of sensible regulatory restrictions should serve to assuage popular fears.

      The post Why Familial Searches of DNA Databases Can and Should Survive Carpenter first appeared on Hastings Law Journal.Thu, 12 Aug 2021 05:00:16 +000
  • Electronic Form Over Substance: eSignature Laws Need Upgrades
    • Lothar Determann

      Volume 72, Issue 5, 1385-1452

      Most professionals favor substance over form. Yet, with respect to form itself, more and more favor electronic form over substantive media and signatures. Companies, consumers, and governments increasingly use electronic communications, documents, and signatures instead of ink and paper. The COVID-19 pandemic has further accelerated an existing shift to digitization. Yet, many remain unsure about the legality or effectiveness of different forms of electronic signatures and find laws on the subject confusing.

      Transactions, documents, and signatures are separate concepts. Transactions and other legally relevant actions, decisions, and declarations can be recorded in documents and effectuated with signatures. Documents and signatures can be created or copied electronically or in other formats. Transactions, actions, decisions, and declarations on the other hand exist in the abstract and independent of the electronic or other form in which they may be documented or signed.

      In practice, people commonly ask whether electronic signatures are legal. But, the more relevant questions to ask are whether electronic signatures are effective and binding; whether they meet statutory form requirements; whether they protect interests as well as handwritten signatures on paper documents; and whether one is required to create, obtain, or retain paper documents with handwritten signatures in addition to electronic records and signatures. To better answer these and other questions, one has to consult not only newer laws specifically regulating electronic signatures and documents, but also older laws prescribing form requirements. Many older laws do not contemplate modern technologies and therefore do not give clear answers as to whether one can satisfy form requirements electronically.

      Numerous different form requirements apply in myriad use cases and jurisdictions with respect to particular transactions, documents, and signatures. Legal and political uncertainties hinder adoption of electronic signature products and global harmonization of applicable laws. Existing laws are complex, confusing, and diverse due to historic factors. As electronic signatures, documents, and records were first adopted more broadly, lawmakers were uncertain regarding the purposes of existing form requirements, how well electronic signatures can address purposes of form requirements, which technologies will be adopted by businesses and consumers, and what legal problems could arise from forgeries. Additionally, lawmakers had reason to be concerned that businesses and consumers would need some time to adapt to new technologies and realize and handle the binding effect of electronically issued declarations. These considerations may have provided a valid excuse in the mid-1990s for somewhat timid, complex, and consciously incomplete and experimental legislation, but twenty years later, they no longer do. It is time for change.

      Lawmakers can and should improve electronic signature laws and harmonize them internationally with clearer default rules favoring electronic form; detailed whitelists enumerating transactions that can be concluded with electronic documents and signatures; possibly blacklists specifying additional form requirements for particular use cases; less complex definitions; and clear conflicts of law rules, ideally permissive ones, possibly paired with bilateral or multilateral recognition or adequacy arrangements to drive international harmonization. At the same time, lawmakers should abandon overly prescriptive regulations that require “qualified electronic signatures” certified by nationally licensed providers, because such constructs have not been widely adopted in the last twenty years and seem to stand little chance or need of being adopted going forward.

      This Article analyzes the current landscape, applicable legislation, and options for change. Following an introduction, this Article clarifies terms and definitions in Part I, reviews the history and rationale of form requirements outside the electronic sphere in Part II, compares the advantages and disadvantages of electronic signatures and documents in Part III, examines basic approaches for legislation and their potential impact on public and individual interests in Part IV, describes and compares current electronic signature legislation in key jurisdictions in Part V, examines effects of international divergence in Part VI, proposes policy arguments for changes in Part VII, and concludes with a summary.

      The post Electronic Form Over Substance: eSignature Laws Need Upgrades first appeared on Hastings Law Journal.Tue, 25 May 2021 04:18:31 +000
  • Race and Equity in the Age of Unicorns
    • Lynnise E. Phillips Pantin

      Volume 72, Issue 5, 1453-1510

      This Article critically examines startup culture and its legal predicates. The Article analyzes innovation culture as a whole and uses the downfall of Theranos to illustrate the deficiencies in Silicon Valley culture, centering on race and class. The Article demonstrates that the rise and fall of the unicorn startup Theranos and its founder, Elizabeth Holmes, is emblematic of the problem with the glorification and pursuit of the unicorn designation for startup ventures. The examination of the downfall of Theranos exposes how investors, founders, and others in Silicon Valley engage with each other in the context of pursuing unicorn status. The saga of Theranos lays bare how the wealthy and the privileged control the private financial markets and underscores the structural inequities within the startup ecosystem. Such a structure promotes certain types of entrepreneurs to the exclusion of others. Diverse and nontraditional entrepreneurs in the startup world face tremendous hurdles to securing financing, mentorship and media exposure. In stark contrast, founders like Holmes benefit from a perception of worthiness drawn from factors such as race, socioeconomic status, pedigree and social connections. This Article examines how the culture of creating the next unicorn has ramifications beyond fraud and risk, but also socio-economic consequences.

      The post Race and Equity in the Age of Unicorns first appeared on Hastings Law Journal.Tue, 25 May 2021 04:12:45 +000
  • Hedonic-Loss Damages That Optimally Deter: An Alternative to “Value of a
           Statistical Life” That Focuses on Both Decedent and Tortfeasor
    • Michael Pressman

      Volume 72, Issue 5, 1511-1572

      Plaintiffs in wrongful-death suits typically are unable to recover for the decedent’s “hedonic loss”—the loss of happiness (or wellbeing) incurred as a result of the lost life-years themselves. Although this omission might not be a mistake on a backward-looking account of tort law (because the decedent is dead and arguably cannot be compensated), it is problematic on a forward-looking account of tort law, because it results in under-deterrence of activities causing death. Thus, we must provide an answer to the tricky question of what dollar sum should be assigned to the loss of life. The dominant framework among legal theorists for thinking about how tort law should determine the dollar sum is the “value of a statistical life” (VSL). In this Article, however, I argue that the VSL approach is mistaken. I explain why, propose an alternative, and explore the wide-ranging implications of my analysis.

      If we are to provide a monetary remedy for the decedent’s lost happiness, we need to translate the lost happiness into a monetary sum. The VSL approach does so on the decedent’s “utility curve,” thus taking the decedent’s wealth into account in determining the damages sum, with the potential tortfeasor then internalizing this monetary cost. This is a mistake. For the incentives to be optimal, we want the potential tortfeasor to instead internalize the amount of happiness loss that would be incurred by the decedent. Therefore, my account carries out the happiness-to- money translation on the potential tortfeasor’s “utility curve”—thus taking into account the potential tortfeasor’s wealth and not the decedent’s wealth.

      The implications of my analysis extend beyond the context of wrongful death, providing us with important insights about tort law more generally, and, more generally still, about law on the whole. In particular, my analysis casts doubt on foundational assumptions underlying the law- and-economics literature—simultaneously providing a new framework that law-and-economics theorists should employ.

      The post Hedonic-Loss Damages That Optimally Deter: An Alternative to “Value of a Statistical Life” That Focuses on Both Decedent and Tortfeasor first appeared on Hastings Law Journal.Tue, 25 May 2021 01:10:10 +000
  • The DOJ’s Role in the Franchise No-Poach Problem
    • Molly Edgar

      Volume 72, Issue 5, 1573-1604

      In 2016, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued a joint policy statement which notified human resource professionals of antitrust issues that may arise in the context of employee recruitment, hiring, and compensation. Among the various issues that the Agencies addressed was the use of no-poach agreements by employers. The Agencies stated that naked no-poach agreements, agreements between employers at different companies to refuse to solicit or hire one another’s employees, are per se illegal under federal antitrust law. Three years later, in a case involving a no-poach agreement, the DOJ filed a statement of interest that departed from the seemingly bright-line rule set forth in its previous joint policy statement. The DOJ took the position that the nature of the franchise system warrants an exception to the general rule—that naked no-poach agreements among employers are per se illegal—and

      suggested that the rule of reason analysis is the appropriate framework.

      Since the DOJ issued its policy statement and subsequent statement of interest, federal district courts have taken varying approaches to franchise no-poach cases. Most have declined to determine the governing standard at the motion to dismiss stage due in part to the lack of agreement between the DOJ and other authorities of antitrust law, including some state attorneys general and the American Antitrust Institute. By adopting the per se standard, courts could easily dispose of franchise no-poach cases and thereby conserve judicial resources and create uniformity for litigants. The use of the per se standard to review franchise no-poach agreements comports with existing antitrust precedent, and the DOJ’s contrary arguments mischaracterize

      the nature of the franchise industry.

      Courts should decline to follow the DOJ’s reasoning in its statement of interest and impose per se liability for franchises that use no-poach agreements. Additionally, under the new administration, the DOJ should revisit the issue to reconcile its position with Sherman Act jurisprudence and its own previous guidance and enforcement actions.

      The post The DOJ’s Role in the Franchise No-Poach Problem first appeared on Hastings Law Journal.Tue, 25 May 2021 01:03:05 +000
  • The Legal Value of Fiscal Sponsorship: A Proposal of New Law
    • Emma Geering

      Volume 72, Issue 5, 1605-1636

      With social conscientiousness as a core value, American society has utilized nonprofit organizations to motivate social change. But as resources are finite and expertise in the complex legal, operational, and organizational nature of charitable organizations is limited, startup or small and local nonprofit organizations are having a harder time getting off the ground. Fiscal sponsorship—a term of art used to describe the relationship between social entrepreneurs and a tax-exempt organization—provides a functional framework to charitable projects that cannot or choose to not obtain tax-exempt status. Fiscal sponsorship provides a business mechanism to advance the nonprofit sector, as it facilitates collaboration, increases efficiency, provides infrastructure, and gives value to funders. Though fiscal sponsorship is an asset to the nonprofit sector, it is not a concept that is defined by the Internal Revenue Code or state corporate laws. As a result, this complex practice of fiscal sponsorship is not well-utilized. As a practical construct that addresses market failures and motivates social change, fiscal sponsorship needs formal recognition in the law. New state corporate codes and Internal Revenue Code provisions cementing fiscal sponsorship in the doctrines supporting nonprofit law are necessary to continuous growth in the nonprofit sector.

      The post The Legal Value of Fiscal Sponsorship: A Proposal of New Law first appeared on Hastings Law Journal.Mon, 24 May 2021 17:14:43 +000
  • Commercial Law Intersections
    • Giuliano G. Castellano & Andrea Tosato

      Volume 72, Issue 4, 999-1054

      Commercial law is not a single, monolithic entity. It has grown into a dense thicket of subject-specific branches that govern a broad range of transactions and corporate actions. When one of such dealings or activities falls concurrently within the purview of two or more of these commercial law branches—such as corporate law, intellectual property law, secured transactions law, conduct and prudential regulation—an overlap materializes. We refer to this legal phenomenon as a commercial law intersection (CLI).

      CLIs are ubiquitous. Notable examples include traditional commercial transactions, such as bank loans secured by shares, supply chain financing, or patent cross-licensing agreements, as well as nascent FinTech arrangements, such as blockchain-based initial coin offerings and other dealings in digital tokens.

      CLIs present a multi-faceted challenge. The unharmonious convergence of commercial law branches generates failures in coordination that both increase transaction costs and distort incentives for market participants. Crucially, in the most severe cases, this affliction deters business actors from entering into the affected transactions altogether. The cries of scholars, judges, and practitioners lamenting these issues have grown ever louder; yet methodical, comprehensive solutions remain elusive.

      This Article endeavors to fill this void. First, it provides a comprehensive analysis of CLIs and the dynamics that give rise to coordination failures. Drawing from systems theory and jurisprudence, it then identifies the deficiencies of the most common approaches used to reconcile tensions between commercial law branches, before advancing the concepts of “legal coherence” and “unity of purpose” as the key to addressing such shortcomings. Finally, leveraging these insights, it formulates a normative blueprint, comprising a two-step method which aims to assist lawmakers, regulators, and courts in untangling the Gordian knot created by CLI coordination failures.

      The post Commercial Law Intersections first appeared on Hastings Law Journal.Mon, 19 Apr 2021 22:02:44 +000
  • Damages for Noneconomic Harm in Intellectual Property Law
    • Thomas F. Cotter

      Volume 72, Issue 4, 1055-1120

      This Article provides a comprehensive analysis of awards of “noneconomic” damages for reputational and emotional harm in intellectual property (IP) law, including trademarks, copyright and moral rights, the right of publicity, and patent law. The Article discusses, among other matters, the Second Circuit’s recent decision in Castillo v. G&M Realty L.P., affirming a $6.75 million award of statutory damages for the infringement of artists’ moral rights in graffiti art; the European Union’s Intellectual Property Rights Enforcement Directive and its 2016 Liffers decision, which appear to require member states to award, where warranted, noneconomic (“moral prejudice”) damages across the full range of IP cases; and some recent arguments in favor of awarding damages for emotional harm in, even, patent infringement actions. Prompted by these and other developments, I argue that courts should recognize reputational harm as a potentially cognizable injury throughout all of the branches of IP law but that damages for emotional harm should be limited to right of publicity and moral rights matters. In addition, I discuss the various options for providing monetary relief in response to noneconomic harm, including awards of general damages, statutory damages, disgorgement of the infringer’s profits, and enhanced or punitive damages; and I conclude with a set of recommendations for crafting awards in a manner that would both vindicate the relevant, cognizable interests of plaintiffs while reducing the risks of arbitrary, uncertain, and potentially overdeterrent relief.

      The post Damages for Noneconomic Harm in Intellectual Property Law first appeared on Hastings Law Journal.Mon, 19 Apr 2021 22:01:07 +000
  • Transplanting Fair Use Across the Globe: A Case Study Testing the
           Credibility of U.S. Opposition
    • Niva Elkin-Koren & Neil Weinstock Netanel

      Volume 72, Issue 4, 1121-1182

      The fair use privilege of United States copyright law long stood virtually alone among national copyright laws in providing a flexible, open-ended copyright exception. Most countries’ copyright statutes set out a list of narrowly defined exceptions to copyright owners’ exclusive rights. By contract, U.S. fair use doctrine empowers courts to carve out an exception for an otherwise infringing use after weighing a set of equitable factors on a case-by-case basis.

      In the face of rapid technological change in cultural production and distribution, however, the last couple decades have witnessed widespread interest in adopting fair use in other countries. Thus far, the fair use model has been adopted in a dozen countries and considered by copyright law revision commissions in several others. Yet, ironically, U.S. copyright industries—motion picture studios, record labels, music publishers, and print publishers— and, in some instances, U.S. government representatives have steadfastly opposed the transplanting of U.S. fair use to other countries. They argue, principally, that, while fair use works reasonably well in the United States, foreign courts that lack the 150 years of U.S. fair use precedent would likely apply the fair use exception in a chaotic, libertine manner, thus seriously undermining copyright protection.

      This Article tests the credibility of that blanket U.S. opposition. In so doing, we present the first comprehensive study of how courts have actually applied fair use in a country outside the United States. We report the results of our study of the first decade of fair use case law in Israel, which enacted a fair use exception as part of its copyright law revision in 2007. We also compare Israeli fair use doctrine with that of the United States, drawing on parallel empirical studies of U.S. fair use case law.

      Our study plausibly supports two general conclusions of relevance to the global debate about fair use. First, our findings counter the sweeping claim, advanced by fair use opponents, that the adoption of fair use outside the United States will inevitably open the floodgates to massive uncompensated copying and dissemination of authors’ creative expression. We find that, in fact, Israeli courts have been far less receptive to fair use defenses than have U.S. courts. Far from seeing fair use as a “free ticket to copy,” Israeli courts actually ruled against fair use at a far greater rate than did their American counterparts during the ten-year period of our study.

      Second, our case study suggests that in one respect U.S. copyright industries raise a valid point: local courts will, indeed, develop distinct versions of fair use doctrine in line with their local jurisprudence and national policies.

      The post Transplanting Fair Use Across the Globe: A Case Study Testing the Credibility of U.S. Opposition first appeared on Hastings Law Journal.Mon, 19 Apr 2021 21:59:37 +000
  • Noncompetes and Other Post-Employment Restraints on Competition: Empirical
           Evidence from Trade Secret Litigation
    • Christopher B. Seaman

      Volume 72, Issue 4, 1183-1226

      Noncompete clauses in employment agreements are both common and controversial. An estimated twenty-eight million Americans—nearly twenty percent of the U.S. workforce—are currently bound by a noncompete. The traditional view that noncompete agreements can facilitate increased productivity by encouraging employers to invest in employee training has been challenged by numerous legal and economics scholars in recent years, who contend noncompetes hinder employment options for skilled workers and limit information spillovers, which are both vital drivers of innovation. Based on these claims, several states have recently limited the enforcement of noncompetes, and legislation is pending at the federal level to effectively ban noncompete agreements for certain types of workers.

      Despite their widespread use, empirical research regarding noncompetes is fragmented and incomplete. In particular, there have been few empirical studies based on actual employment agreements. This Article helps fill an important gap in the existing literature. Using a novel dataset of noncompete agreements that have been publicly disclosed in trade secret litigation in federal court, it finds that noncompetes are more frequently enforced against technical and sales personnel, instead of high-ranking corporate executives. In addition, it finds that noncompetes are common for employees with a base salary below $100,000 per year and that California-based employees are significantly less likely to be bound by a noncompete. The implications of these and other findings from the dataset are discussed in the final Part of the Article.

      The post Noncompetes and Other Post-Employment Restraints on Competition: Empirical Evidence from Trade Secret Litigation first appeared on Hastings Law Journal.Mon, 19 Apr 2021 21:57:34 +000
  • Not My Problem' Landlord Liability for Tenant-on-Tenant Harassment
    • Aric Short

      Volume 72, Issue 4, 1227-1274

      Tenant-on-tenant harassment because of a victim’s race, gender, or other protected status, is a severe and increasingly widespread problem often targeting vulnerable tenants. The creation of a hostile housing environment violates the federal Fair Housing Act (FHA), and victims may recover from their abusers, whether they are landlords or fellow tenants. But plaintiffs in two recent FHA lawsuits sought recovery from their landlords for something different: their landlords’ failure to intervene in and stop harassment committed by other tenants. These suits raise novel and important questions about the scope of the FHA, but the two courts disagreed about how the FHA’s language should be interpreted. This Article demonstrates why the FHA should be interpreted to impose on landlords a duty to take reasonable steps to investigate and remedy tenant-on-tenant harassment that they know or should have known about.

      In the workplace, under Title VII, employers have a duty, flowing from statutory language nearly identical to the FHA, to take reasonable steps to prevent hostile work environments. Despite strong similarities between the FHA and Title VII in language and congressional intent, courts have been reluctant to import a parallel standard in the housing setting. This Article analyzes the Title VII analogy and illustrates that compelling reasons exist for courts to fully adopt the Title VII analogy in this emerging area of FHA law.

      The post Not My Problem? Landlord Liability for Tenant-on-Tenant Harassment first appeared on Hastings Law Journal.Mon, 19 Apr 2021 21:55:55 +000
  • Introduction: Students’ Solutions to a Super Wicked Problem
  • The Water Is Coming: How Policies for Internally Displaced Persons Can
           Shape the U.S. Response to Sea Level Rise and the Redistribution of the
           American Population
    • Kelly Carson

      Volume 72, Issue 4, 1279-1312

      Roughly forty percent of the United States population lives in an area threatened to be underwater by 2100 due to climate change. There are little to no infrastructural and policy frameworks to handle this problem. This Note explores existing U.S. frameworks for disaster response—namely, the Federal Emergency Management Agency (FEMA), the Small Business Administration (SBA), and the Department of Housing and Urban Development (HUD)—as well as early-stage initiatives to relocate entire communities within the United States. It then examines domestic and international policies for handling internally displaced persons (IDPs), including the United Nations Guiding Principles on Internal Displacement, the U.S. Agency for International Development Assistance to Internally Displaced Persons Policy and Implementation Guidelines, and the Kampala Convention. The Note then suggests specific applications of these policy frameworks to the issue of environmentally displaced persons (EDPs) in the United States, finding that a more proactive approach including codified liability for private actors, economic incentives for retreat, and a centralized agency to handle EDPs will provide the United States with a strong foundation to handle the unique challenges facing the growing number of EDPs within its borders.

      The post The Water Is Coming: How Policies for Internally Displaced Persons Can Shape the U.S. Response to Sea Level Rise and the Redistribution of the American Population first appeared on Hastings Law Journal.Mon, 19 Apr 2021 21:52:21 +000
  • Climate Change Regulation, Preemption, and the Dormant Commerce Clause
    • Tyler Runsten

      Volume 72, Issue 4, 1313-1346

      As climate change regulation from the federal level becomes increasingly unlikely, states and local governments emerge as the last stand against climate change in the United States. This tension ushers in questions of separation of powers and federalism, with which the courts have wrestled since the country’s founding. The doctrine of preemption is one of the federal government’s strongest tools to limit states’ authority to regulate climate change. Preemption challenges have been increasing lately and have largely succeeded under judicial deference to the executive branch. However, recent changes to the Supreme Court signal that the Court may be less willing to grant to the executive branch the same deference that it once gave. There may now be more of an opportunity for legislators to enact regulation at the state and local level.

      If preemption is out of the question, there are other constitutional considerations that state and local lawmakers should keep in mind, most notably the dormant Commerce Clause. States such as California and Oregon, in their regulation of carbon emissions from automobiles, have already faced these challenges. But if preemption claims become less successful, dormant Commerce Clause challenges will likely increase. Recent Ninth Circuit decisions shed light on what state legislatures should consider when enacting similar environmentally protective statutes. Specifically, the principles of extraterritoriality and virtual representation guide how a state should frame its regulatory program.

      The post Climate Change Regulation, Preemption, and the Dormant Commerce Clause first appeared on Hastings Law Journal.Mon, 19 Apr 2021 21:50:33 +000
  • All I Want for Christmas Is a Carbon Sink
    • Tori Timmons

      Volume 720, Issue 4, 1347-1384

      Anthropogenic climate change is among the gravest problems humanity faces. Nonetheless, global greenhouse gas emissions are not slowing, and the complete elimination of greenhouse gas emissions is not currently foreseeable. American culture and industries rely on activities and technologies that overuse greenhouse-gas-emitting fuel. Despite ever-increasing awareness and concern, many Americans feel apathetic and discouraged regarding behavioral changes for the benefit of the environment, even those who acknowledge the existence and exigency of climate change. In order to make a real impact, and nullify any barriers to action, climate change-focused laws must encompass everyday behaviors. Enter the American Christmas tree market. Dangerously high levels of atmospheric greenhouse gases can be tackled by reducing emissions and increasing absorption and storage of carbon, which can offset continued pollution. Carbon offset projects absorb more carbon than they emit. These projects can be funded by greenhouse-gas-emitting entities that are offsetting their over-pollution. If Christmas tree farms implement practices that are eligible as carbon offset projects, players in the American Christmas tree industry will be subsidized for adjusting their practices in favor of sustainable methods that increase the carbon sequestration of their Christmas tree crops and farmland. Through the implementation of laws that target the reduction of greenhouse gas emissions and the optimization of greenhouse gas sinks on Christmas tree farms, the American Christmas tree industry can become a net-positive climate activity and meet the requirements set by carbon offset programs. This Note will focus primarily on the legal tools that can encourage and require changes in the production of natural Christmas trees in the United States and whether such changes meet common eligibility criteria for carbon offset credits.

      The post All I Want for Christmas Is a Carbon Sink first appeared on Hastings Law Journal.Mon, 19 Apr 2021 21:46:44 +000
  • Anti-GMO and Vaccine-Autism Public Policy Campaigns in the Court of Public
    • Robert C. Bird

      Volume 72, Issue 3, 719-772

      Science skepticism is on the rise worldwide, and it has a pernicious influence on science and science-based public policy. This Article explores two of the most controversial science-based public policy issues: whether genetically modified foods are inherently unsafe and whether vaccines cause autism spectrum disorder. After evaluating the scientific credibility and discursive power of these claims, this Article analyzes how changes in public opinion can shift public policy away from anti-scientific practices. Legal scholarship can play a substantial role because, if accessibly written, it has the potential to be timely, persuasive, and comprehensible by a broad audience. Other stakeholders also play a meaningful role. Finally, this Article explores the possibility of what could happen if these movements are left unchecked. This Article concludes that a coordinated effort by a variety of stakeholders, and especially relevant experts in the legal field, can roll back the tide of anti-science in the court of public opinion.

      The post Anti-GMO and Vaccine-Autism Public Policy Campaigns in the Court of Public Opinion first appeared on Hastings Law Journal.Mon, 01 Mar 2021 01:30:06 +000
  • Health Care Civil Rights Under Medicare for All
    • Valarie K. Blake

      Volume 72, Issue 3, 773-826

      The passage of Medicare for All would go a long way toward curing the inequality that plagues our health care system along racial, sex, age, health status, disability, and socioeconomic lines. Yet, while laudably creating a universal right to access to health care, Medicare for All may inadvertently dampen civil rights protections that are necessary to ensure equality in health care delivery, an outcome its creators and supporters surely would not intend.

      Federal money is typically requisite for civil rights enforcement. Title VI, Title IX, and the Age Discrimination Act of 1975 all apply to recipients of federal financial assistance. Under Medicare for All, the federal government becomes the payer, not recipient, of federal funds, leaving it outside civil rights enforcement unlike private insurers. Additionally, because of historic quirks in how we interpret civil rights law, Medicare for All may leave health care providers outside of nondiscrimination mandates altogether.

      Medicare for All creates a vacuum in civil rights applicability—one that lawmakers will have to fill if we want nondiscrimination by doctors and health benefits administrators—but it also creates an opportunity for lawmakers to reimagine the possibilities of civil rights in health care. Lawmakers have been none too deliberate about this process in the past, with civil rights being a byproduct rather than a goal of health reform. With careful planning, Medicare for All can go beyond retaining the status quo and become a meaningful and intentional civil rights movement in health care, providing greater access to health care in our country as well as more robust civil rights protections for patients in the future.

      The post Health Care Civil Rights Under Medicare for All first appeared on Hastings Law Journal.Mon, 01 Mar 2021 01:27:39 +000
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