Volume 71
Uncooperative Environmental Federalism 2.0
Jonathan H. Adler Volume 71, Issue 5, 1101-1126 As a presidential candidate, Donald Trump promised to curtail federal environmental regulation and empower the states. Has the Trump Administration made good on these pledges to reinvigorate cooperative federalism and...
How Much Procedure Is Needed for Agencies to Change “Novel” Regulatory Policies?
Ming Hsu Chen Volume 71, Issue 5, 1127-1142 The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make...
Exceptional Circumstances: Immigration, Imports, the Coronavirus, and Climate Change as Emergencies
Daniel A. Farber Volume 71, Issue 5, 1143-1176 President Trump has used emergency powers to achieve key parts of his policy agenda, exemplified by his travel ban, funding for the border wall, and tariffs on many imports. He has also declared the 2020 coronavirus...
Statutory Purpose in the Rollback Wars
Alice Kaswan Volume 71, Issue 5, 1177-1206 The Trump Administration has been rolling back environmental and other regulations at a rapid rate. Each time, they are called upon to interpret their authorizing statutes. As they reverse previous administrations’...
Sticky Regulations and Net Neutrality Restoring Internet Freedom
Aaron L. Nielson Volume 71, Issue 5, 1207-1224 Stable law is valuable, yet also remarkably lacking in our nation’s internet policy. Over the last two decades, the Federal Communications Commission (FCC) has charted a zigzagging course between heavier and lighter...
Operationalizing Internal Administrative Law
Christopher J. Walker & Rebecca Turnbull Volume 71, Issue 5, 1225-1248 As part of the Hastings Law Journal’s Administrative Law in the Age of Trump Symposium, this Essay argues that administrative law should stop fixating on federal courts. While court-centric...
Power Lines: Climate Change and the Politics of Undergrounding
Deborah Brundy Volume 71, Issue 5, 1249-1282 After years of enduring devastating loss of property and life, toxic air quality and intermittent power shutoffs, the public is primed for dramatic change to ensure a safe and resilient power grid. To achieve this,...
Fracking as a Test of the Demsetz Property Rights Thesis
David A. Dana & Hannah J. Wiseman Volume 71, Issue 4, 845-900 Since its introduction in 1967, the account of property rights formation by Harold Demsetz has pervaded the legal and economic literature. Demsetz theorized that as a once-abundant, commonly shared...
The Making of the Clean Air Act
Brigham Daniels, Andrew P. Follett, & Joshua Davis Volume 71, Issue 4, 901-958 The 1970 Clean Air Act is arguably Congress’ most important environmental enactment. Since it became law fifty years ago, much could be and has been said about how it has changed both...
Pharmaceutical “Pay-for-Delay” Reexamined: A Dwindling Practice or a Persistent Problem?
Laura Karas, MD, MPH; Gerard F. Anderson, PhD; Robin Feldman, JD Volume 71, Issue 4, 959-974 The Supreme Court ruled in FTC v. Actavisthat a delay in generic entry may be anticompetitive when part of a patent settlement includes a large and otherwise unjustified value...
Justice Roger J. Traynor, Pragmatism, and the Current California Supreme Court
Stephen D. Sugarman Volume 71, Issue 4, 975-1018 California Supreme Court Justice Roger J Traynor entered the debated between pragmatists and formalists, siding with the former in both his scholarly writings and in his judicial opinions, especially in torts. In this...
Generic but Expensive: Why Prices Can Remain High for Off-Patent Drugs
Frazer A. Tessema, Aaron S. Kesselheim, Michael S. Sinha Volume 71, Issue 4, 1019-1052 Brand-name prescription drugs are sold at extremely high prices in the US because patents and other market exclusivities provided by the government allow manufacturers to exclude...
A Public Health Law Path for Second Amendment Jurisprudence
Michael R. Ulrich Volume 71, Issue 4, 1053-1100 The two landmark gun rights cases, District of Columbia v. Hellerand McDonald v. City of Chicago, came down in 2008 and 2010, respectively. In the decade that has followed, two things have become abundantly clear. First,...
Roger Traynor, the Legal Process School, and Enterprise Liability
Edmund Ursin Volume 71, Issue 4, 1101-1052 Roger Traynor, who served on the California Supreme Court from 1940 to 1970, the last five years as Chief Justice, was one of America’s great judges. This Article compares Traynor’s view of the lawmaking role of courts with...
Supreme Court Politics and Life Tenure: A Comparative Inquiry
Kevin Costello Volume 71, Issue 4, 1053-1080 While the process of nominating and confirming justices to the U.S. Supreme Court has always been political in nature, the three most recent nominations of Merrick Garland, Neil Gorsuch, and Brett Kavanaugh illustrate the...
Putting Names to Money: Closing Disclosure Loopholes
Elections create an opportunity for voters to get to know the candidates, but elections also give voters the opportunity to get to know their fellow voters. Campaigns are obligated to disclose the identity of their donors, which can make these donors’ political affiliations known to the world. Also, the identity of a donor can adversely affect the recipient’s public image and potentially, the election. These disclosure requirements arguably enable stigmatizing candidates and fellow voters for their political ideology, but this is offset by the desire to make elections transparent.
In today’s polarized society, the risk of stigma seems greater than in the past—imagine wearing a MAGA hat in San Francisco or an Alexandria Ocasio-Cortez shirt in rural Alabama—but it pales in comparison to the need for transparency in elections. After the 2016 Presidential Election, Democrats and Republicans alike claimed that nefarious actors attempted to influence the election: be it through foreign interference or election fraud. While there are some disclosure requirements that help mitigate such influence, the current requirements have several loopholes that actors use to remain anonymous.
This Note evaluates three of these disclosure loopholes: (1) the 501(c) disclosure exemption for independent expenditures; (2) the internet loophole for certain electioneering communications; and (3) the straw-donor laundering loophole. Throughout this analysis, one theme stands out: the structure of the Federal Election Commission (FEC) has crippled the agency’s ability to enforce disclosure laws. Absent unlikely assistance from Congress, the solution lies with the courts.
Recent judicial decisions portend the possibility of meaningful judicial review of FEC inactions. While questions remain about whether FEC decisions based on “prosecutorial discretion” are exempt from judicial review, the Federal Election Commission Act gives the courts authority to review FEC decisions that are contrary to law. This Note concludes by arguing that FEC enforcement decisions are not exempt and should be nullified if they are “contrary to law.”
Dying for Equal Protection
Teri Dobbins Baxter Volume 71, Issue 3, 535-588 When health policy experts noticed that health outcomes for African Americans were consistently worse than those of their White counterparts, many in the health care community assumed that the poor outcomes could be...
From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges
Amnon Reichman, Yair Sagy, & Shlomi Balaban Volume 71, Issue 3, 589-636 This Article reveals the untold story of Legal-Net, Israel’s cloud-based judicial management system. While scholarly attention has thus far focused on the narrow question of the impact...
Psychological Distress, Mental Disorder, and Assessment of Decisionmaking Capacity Under U.S. Medical Aid in Dying Statutes
Lois A. Weithorn Volume 71, Issue 3, 637-698 This Article examines concepts of treatment decisionmaking capacity relevant to medical aid in dying as it is currently authorized in the United States. In order to be eligible for medical aid in dying in one of the ten...
Managerial Fixation and the Limitations of Shareholder Oversight
Emily Winston Volume 71, Issue 3, 699-748 BlackRock’s recent public letters to the CEOs of the companies in which it invests have drawn substantial attention from stock market actors and observers for their conspicuous call on corporate CEOs to focus on sustainability...
Reconceiving Legal Siblinghood
Ruth Zafran Volume 71, Issue 3, 749-782 How should the state treat siblings’ legal relationships in cases where the relationship is based solely on genetics, such as between siblings who were born of the same sperm donor, but did not grow up together? How should it...
Google—Do Not Pass Go, Do Not Collect $200: Why the Tech Giant Is a “Bad” Monopoly
Alicia Ginsberg Volume 71, Issue 3, 783-812 Congress enacted the Sherman Act in 1890 to promote competition and creativity in the marketplace. The Sherman Act prohibits agreements that restrain trade and lays out rules regarding monopoly power. This Note explores...
The “Weaponization” of Facebook in Myanmar: A Case for Corporate Criminal Liability
Neriah Yue Volume 71, Issue 3, 813-844 The advent of social media platforms in the mid-2000s increased global communication and encouraged innovative activism by ushering new, effective ways to organize and protest. News agencies have recently reported the misuse of...
Affording Obamacare
Isaac D. Buck Volume 71, Issue 2, 261-306 As it approaches its tenth birthday, the Patient Protection and Affordable Care Act (ACA) is devolving. Intended to solve problems that had vexed American health care for generations, the ACA built a comprehensive structure by...
Playing Both Sides? Branded Sales, Generic Drugs, and Antitrust Policy
Michael A. Carrier, Mark A. Lemley, & Shawn Miller Volume 71, Issue 2, 307-358 The issue of high drug prices has recently exploded into public consciousness. And while many potential explanations have been offered, one has avoided scrutiny. Why has the growth in...
Constitutional End Games: Making Presidential Term Limits Stick
Rosalind Dixon & David Landau Volume 71, Issue 2, 359-418 Presidential term limits are an important and common protection of constitutional democracy around the world. But they are often evaded because they raise particularly difficult compliance problems that we...
Unmasking the Right of Publicity
Dustin Marlan Volume 71, Issue 2, 419-474 In the landmark 1953 case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank first articulated the modern right of publicity as a transferable intellectual property right. The right of publicity has since been...
Net Neutrality: A State[d] Approach
Katherine Grainger Volume 71, Issue 2, 475-500 In 2018, the Federal Communications Commission ended federal net neutrality protections in its Restoring Internet Freedom Order. In response, many states introduced legislation to create their own state-level protections....
The Inadequacies of the Cybersecurity Information Sharing Act of 2015 in the Age of Artificial Intelligence
Bert Lathrop Volume 71, Issue 2, 501-534 The relentless accumulation of private consumer information through online services has dramatically expanded the attack surface available to cyber-criminals and belligerent state actors looking to either enrich themselves or...
Do the “Haves” Come Out Ahead in Chinese Grassroots Courts? Rural Land Disputes Between Married-Out Women and Village Collectives
Peter C.H. Chan Volume 71, Issue 1, 1-78 This Article tests Galanter’s party capability theory in China’s grassroots courts by empirically examining 858 sampled judgments of rural land dispute lawsuits between marriedout women (the “have-nots,” or the less resourceful...
Beyond the Double Veto: Housing Plans as Preemptive Intergovernmental Compacts
Christopher S. Elmendorf Volume 71, Issue 1, 79-150 The problem of local-government barriers to housing supply is finally enjoying its moment in the sun. For decades, the states did little to remedy this problem and arguably they made it worse. But spurred by a rising...
Play Now, Pay Later?: Youth and Adolescent Collision Sports
Vivian E. Hamilton Volume 71, Issue 1, 151-196 The routine and repeated head impacts experienced by athletes in a range of sports can inflict microscopic brain injuries that accumulate over time, even in the absence of concussion. Indeed, cumulative exposure to head...
The Roper Extension: A California Perspective
Zoe Jordan Volume 71, Issue 1, 197-228 Although adulthood legally begins at age eighteen, young adults between the ages of eighteen and twenty-one are distinct from the rest of the adult population. Many studies conducted over the last two decades have revealed that...
A Path Towards Arctic Presence: Stricter Regulation as the First Step in Free Navigation
Luke Sanders Volume 71, Issue 1, 229-260 The Arctic ice cap is melting. As the ice recedes, shipping lanes are opening that present shorter transport routes across the top of the globe. Industry analysts predict an Arctic shipping boom in coming years. In response,...