The Reality of International Commercial Arbitration in California
Volume 68, Issue 4, 909-930
California is one of the largest economies in the world. It is home to many of the most successful companies in all sectors, especially health and technology. In recent years arbitration agreements, which have already been around for almost 100 years, have become boilerplate in most agreements with large California-headquartered companies. The United States Supreme Court continues to issue decisions in support of arbitration, most recently in DIRECTV, Inc. v. Imburgia. The courts in California, however, have counterintuitively stayed on the side of consumers by repeatedly denying enforcement of arbitration clauses, which forces their companies to go to more friendly jurisdictions, such as New York.
This Note looks at the history of the Federal Arbitration Act and major U.S. Supreme Court opinions in support of arbitration. That federal support will then be compared to California courts’ hesitance to support arbitration and the resulting disagreements between the Supreme Court and California courts. New York law is used to illustrate what an “arbitration-friendly” jurisdiction looks like and what changes California would need to make in order to make it easier for companies to locate their arbitration proceedings in California.
Daddy or Donor? Uncertainty in California Law in the Wake of Jason P. v. Danielle S.
Amy Leah Holtz
Volume 68, Issue 4, 869-908
The era of technology has provided a proliferation of new scientific and technological methods designed to assist individuals and couples to successfully conceive children when they otherwise would not be able to: collectively known as “assisted reproduction technology” (“ART”). ART undoubtedly provides significant benefits, but at the same time opens the door to a new realm of legal disputes. Particularly, various forms of ART involve a third-partysuch as a sperm donor or a surrogatewhich raises the question of who will be treated as a legal parent of the child so conceived. The use of third-parties in ART has confounded traditional notions of parent-child relationships by involving individuals who have a biological relationship with the child, but may or may not intend to act as a legal parent. This Note focuses on parentage disputes between unmarried individuals who conceive children through the use of third-party assisted ART.
Specifically, this Note provides a critique of a 2014 case in which a California court established paternity rights for a sperm donor who undisputedly did not intend to father at the time of conception, but attempted to assert parental rights over the vehement objections of the child’s mother after the child was born. This Note argues that the court’s decision was legally incorrect and left California law in a state of confusion resulting in public policy consequences. This Note proposes that California resolve this confusion by adopting an intent-based approach to parentage decisions in the ART context. Such an approach would provide certainty in application of the law that is essential in making informed decisions about whether to engage in third-party assisted ART.
Grasping Fatherhood in Abortion and Adoption
Malinda L. Seymore
Volume 68, Issue 4, 817-868
Biology makes a mother, but it does not make a father. While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood. Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomyit is easy to identify the mother of each child. But aside from the biological, there are historical, social, and political reasons for recognizing mothers as legal parents while disregarding legal parenthood for nonmarital fathers.
This Article seeks to unpack the distinctions drawn between biological mothers and biological fathers in decisions about abortion and adoption placement. Both decisions are given to the sole discretion of the mother under current law, while such unilateral decisionmaking seems to make sense only in the context of abortion. Once a child is born, and a decision is being made about whether to parent the child or to place the child for adoption, there is less justification for excluding the biological father. This Article explores notions of fatherhood and how fatherhood has changed in society to show how the legal standards have lagged behind those societal changes. The Article concludes with a proposal on how courts should address birth fathers’ rights in adoption to provide greater protection for those rights.
The Life and Legacy of Professor Calvin R. Massey: A Select Annotated Bibliography
Volume 68, Issue 4, 795-816
Professor Calvin R. Massey served on the faculty of the University of California, Hastings College of the Law from 1987 until 2012. From 2012 until his death in 2015, he served as the inaugural Daniel Webster Distinguished Professor of Law on the faculty of the University of New Hampshire School of Law. A noted constitutional law and property scholar, Professor Massey wrote two textbooks, published dozens of articles, and gave countless presentations over the course of his three decades in legal academia. While his scholarly interests were many and varied, he might be best known for his writings on the Ninth Amendment and unenumerated rights, a subject about which he wrote four law review articles and a monograph.
What follows is an annotated bibliography that attempts to collect and describe Professor Massey’s body of work. This bibliography begins with a short biography. Next, Professor Massey’s works are listed and annotated according to the category in which they fall: books; articles, essays, and book reviews; or audio and video recordings. Finally this Article concludes with a brief reflection on the significance of the recorded knowledge Professor Massey left behind.
This bibliography is select because juvenilia, supplements, study aids, superseded works, and unrecorded public appearances have been excluded. While the Author attempted to take a descriptive approach to annotating the works found in this Article, there are instances in which the Author’s enthusiasm may have driven him into the realm of evaluation.
Big Data and the Americans with Disabilities Act
Volume 68, Issue 4, 777-794
While big data offers society many potential benefits, it also comes with serious risks. This Article focuses on the concern that big data will lead to increased employment discrimination. It develops the novel argument that the Americans with Disabilities Act (“ADA”) should be amended in response to the proliferation of big data in order to protect individuals who might be categorized as likely to develop physical or mental impairments in the future.
Employers can obtain medical data about employees not only through the traditional means of medical examinations and inquiries, but also through the nontraditional mechanisms of social media, wellness programs, and data brokers. Information about workers’ habits, behaviors, or attributes that is derived from big data can be used to create profiles of undesirable employees. It can also be used to exclude healthy and qualified individuals whom employers regard as vulnerable to future medical problems. The ADA, which now protects only individuals with current or past disabilities and those who are perceived as having existing impairments, can no longer ignore the discrimination threats posed by predictive health data. This Article analyzes these risks and proposes a detailed statutory response to them.
California Constitutional Law: Popular Sovereignty
David A. Carrillo
Volume 68, Issue 4, 731-776
In 1911, the California Constitution was amended to divide the state’s legislative power by reserving to the electorate the powers of initiative, referendum, and recall. Most of the thinking to date on popular sovereignty in California, and about the initiative power particularly, has focused on either a specific application of direct democracy, or on its broad practical effects on the state. No authority has attempted to define the fundamental nature of popular sovereignty in California, nor to craft a complete doctrinal solution for resolving challenges to direct democracy acts. Those tasks are the purpose of this Article.
The Article considers two questions: First, how to classify the electorate’s powers in the California state government, and second, how to balance those powers against those of the other branches of the state government when they come into conflict. Answering these questions is important because the courts regularly face the difficult prospect of striking down an electorate act, which is necessarily supported by a majority of the voters. Doing so without the best possible rationale risks delegitimizing a decision against the electorate, and weakens the judiciary’s greatest power: its perceived impartiality. Yet no answer to either question can be found in the cases or commentary.
To answer those questions, this Article defines the powers of the people and the electorate, proposes that the electorate be classified as a legislative branch when using its legislative powers, and that the existing separation of powers analysis be adapted to include the electorate. The courts have developed an analysis that applies to one recurring problem in this area: categorizing electorate acts as revisions or amendments to the California Constitution. But that is not the only type of problem that the electorate can create with its legislative power; indeed, the separation of powers problem created by interbranch conflict is both distinct and more serious. Lacking a means to account for the electorate’s power, courts adjudicating structural questions or conflicts between the electorate and the other branches of government have struggled to resolve those cases with the only available tool: the revision–amendment analysis. This Article proposes a solution to that problem.
The Deregulation of Private Capital and the Decline of the Public Company
Elisabeth de Fontenay
Volume 68, Issue 3, 445-502
From its inception, the federal securities law regime created and enforced a major divide between public and private capital raising. Firms that chose to “go public” took on substantial disclosure burdens, but in exchange were given the exclusive right to raise capital from the general public. Over time, however, the disclosure quid pro quo has been subverted: Public companies are still asked to disclose, yet capital is flooding into private companies with regulators’ blessing.
This Article provides a critique of the new public-private divide centered on its information effects. While regulators may have hoped for both the private and public equity markets to thrive, they may instead be hastening the latter’s decline. Public companies benefit significantly less from mandatory disclosure than they did just three decades ago, because raising large amounts of capital no longer requires going and remaining public. Meanwhile, private companies are thriving in part by freeriding on the information contained in public company stock prices and disclosure. This pattern is unlikely to be sustainable. Public companies have little incentive to subsidize their private company competitors in the race for capitaland we are already witnessing a sharp decline in initial public offerings and stock exchange listings. With fewer and fewer public companies left to produce the information on which private companies depend, the outlook is uncertain for both sides of the securities-law divide.
“Strangers in a Strange Land”: Chinese Companies in the American Tax System
Volume 68, Issue 3, 503-540
Foreign direct investment (“FDI”) from emerging economies generally exhibits two distinct characteristics: (1) most of the investors thrive in poor regulatory environments, and (2) the visible hand of the state exerts a powerful influence. Due to these two features, emerging market FDI poses novel questions to tax law scholars and U.S. policymakers. For instance, will the investors import noncompliance practices? Or will they adapt to the complex and stringent regulatory regime of the host country? To answer these questions, this Article presents the first empirical study of Chinese multinational companies operating in the U.S. tax system. Despite wide gaps between the two countries in terms of tax administration and compliance, Chinese investors in the United States generally appear to have adapted to U.S. tax law. In terms of tax audits and disputes with the Internal Revenue Service (“IRS”), this study finds preliminary evidence that distinguishes between the investments of state-owned companies and those of privately owned companies. Overall, the findings contribute to several important policy and theoretical debates and have significant, practical implications.
Law in Hiding: Market Principles in the Global Legal Order
Volume 68, Issue 3, 541-608
Standing in the background of the global legal order are a range of what might be called “market principles” or “market givens”collective presentations or beliefs about how markets workwhich are treated as objective descriptions at a particular time and place. This Article argues that such market givens should be understood as a kind of “law in hiding,” shaping the policy space available to states and other actors and affecting global legal developments in important but unrecognized ways. Drawing on examples from global financial law, rules on capital mobility, and sovereign debt practices, I demonstrate how market principles can provide the real substantive content for conventionally recognized law, effectively counter official law, and act as powerful rules in the absence of clear legal standards. I further consider why “law” is a suitable categorization for these market principles, adopting a broad definition that derives from and pushes forward recent international legal scholarship. I contend that deliberately incorporating market principles into our understanding of the global legal order would be not only theoretically plausible but also productive, especially by expanding the field of legal work and activism and by raising important questions about lawmaking mechanisms, accountability, and norm coherence. I also suggest that market principles have thus far escaped attention from lawyers in part because of tendencies and assumptions in multiple variants of international legal scholarship itself.
In highlighting how market principles play a role in the global legal order, I do not intend to grant them the legitimacy or presumptive obedience sometimes associated with the label “law.” Indeed, my motivation draws in part from a concern with the capacity of these market principles to effectively undermine policy options that may lead to better outcomes. My goal, instead, is to place them as squarely as possible at the center of legal analysis and critiqueand therefore to level the playing field between these market principles and other types of principles and values we may care about.
Volume 68, Issue 3, 609-656
Migration emergencies are a commonplace feature in contemporary headlines. Pundits offer a variety of causes provoking these emergencies. Some highlight the deadly risks of these journeys for the migrants. Many more express alarm at the potential threats these mass influxes pose to their destination countries. But few question whether these migrant flows are, as commonly portrayed, unexpected and unpredictable. This Article asks whether these migration emergencies are surprising events or the logical and foreseeable outcomes of the structural failures of the global migration system. In particular, it interrogates the architecture of international migration law, arguing that the current framework is unsustainable in today’s globalized world.
This is a story about the legal construction of crisis. Several literatures offer compelling insights into the construction of migration crises, but fail to explore the crucial role of international migration law. Scholars of forced migration view the legal framework as an inadequate response to crises but not as a root cause. Others have highlighted the role that crises play in the development of international law, demonstrating how crises impact law, but failing to examine how law helps to construct those crises.
This Article begins to unpack the role of international migration law in constructing migration “crises.” International migration law, because it is codified in written instruments and nearly impossible to alter, entrenches sociocultural frames that might otherwise be substantially more flexible. International law has constructed a deeply path-dependent approach to international migration that not only obscures systemic inequality but also consumes alternate conceptions of morality. In response to this critique, this Article suggests a new approach to global migration law that aims to govern migrant flows more effectively. In short, it aims to establish international migration law as a separate subfield of international law rather than the afterthought that it currently represents.
Making It Up: Lessons for Equal Protection Doctrine from the Use and Abuse of Hypothesized Purposes in the Marriage Equality Litigation
Volume 68, Issue 3, 657-710
To survive rational basis scrutiny under the Equal Protection Clause, a law must serve a governmental purpose which is at least legitimate. It is well established that legitimate purposes can sometimes be found through speculation and conjecturethat is, they may be hypothesizedin order to avoid the difficulties of identifying actual purpose or the specter of courts second-guessing legislative judgments. But hypothesized purposes can be abused, and such abuse was rampant in the states’ defenses of their bans on same-sex marriage, bans which were ultimately invalidated in Obergefell v. Hodges.
This Article draws on the federal marriage litigation as a lens for thinking critically about hypothesized purposes. It suggests several lessons about hypothesized purposes that should guide courts in the future. In particular, I discuss (1) the differences between hypothesized purposes, which are grounded in facts and concerns that were conceivably before a legislature, and post-hoc rationalizations, which I define as pretexts that have been manufactured to satisfy rational basis scrutiny but which could not plausibly have been a legislative purpose; (2) how courts should approach hypothesized purposes when there is evidence that a law was impelled by animus; and (3) why hypothesized purposes are inappropriate and should receive skeptical scrutiny when they are offered in support of measures enacted through direct democracy.
The Modern Legal Status of Frozen Embryos
Volume 68, Issue 3, 711-730
With the help of modern technology, people today have more flexibility than ever before in the realm of family planning and conceiving children. An increasing amount of
couples are opting to go through in vitro fertilization to create and then freeze embryos for use at a later date. However, problems arise when these people no longer want to have children together.
Our courts are still grappling with the issue of what happens to these embryos in the event of separation, and various theories of the legal status of an embryo have emerged in response, to try to shed light on the complex arguments for each side. This Note argues that the unique class occupied by the frozen embryothat of not quite person and not quite propertyshould be embraced. This Note further proposes a new statutory scheme that would provide courts with a straightforward framework to guide their analysis in separation or divorce proceedings.