by technology@hastingslawjournal.org | Mar 31, 2022 | Volume 73, Issue 3
Jason Rantanen, Lindsay Kriz & Abigail A. Matthews Volume 73, Issue 3, 667-722 Many scholars have observed that an empirical study is only valid to the extent it is reliable. Yet assessments of the reliability of empirical legal studies are rare. The closest most...
by technology@hastingslawjournal.org | Mar 31, 2022 | Volume 73, Issue 3
Christopher W. Schmidt Volume 73, Issue 3, 723-772 This Article argues that to better understand the historical development of Fourteenth Amendment antidiscrimination doctrine, we should look to the Thirteenth Amendment. The Fourteenth Amendment was drafted in...
by technology@hastingslawjournal.org | Mar 31, 2022 | Volume 73, Issue 3
Eli Siems, Katherine J. Strandburg & Nicholas Vincent Volume 73, Issue 3, 773-820 Trade secrecy is a major barrier to public scrutiny of probabilistic software tools that are increasingly used at all stages of the criminal system, from policing and investigation...
by technology@hastingslawjournal.org | Mar 31, 2022 | Volume 73, Issue 3
Mark Verstraete, Jane R. Bambauer & Derek E. Bambauer Volume 73, Issue 3, 821-860 Fake news presents a complex regulatory challenge in the increasingly democratized and intermediated on-line information ecosystem. Inaccurate information is readily created by...
by technology@hastingslawjournal.org | Mar 31, 2022 | Volume 73, Issue 3
Jenny Bagger Volume 73, Issue 3, 861-918 As the question of how new technology factors into the personal jurisdiction analysis remains unresolved, the vast increase in the reliance on remote technology that the COVID-19 pandemic spurred urges a definitive answer. Even...
by technology@hastingslawjournal.org | Mar 31, 2022 | Volume 73, Issue 3
Reina Shinohara Volume 73, Issue 3, 919-946 As we spend more of our days online, we are seeing a shift in content moving towards a progressively simulated reality. The virtual worlds of video games and other online communities have become a norm for many, with an...
by technology@hastingslawjournal.org | Feb 16, 2022 | Volume 73, Issue 2
Isaac D. Buck Volume 73, Issue 2, 191-232 “The biggest crime you can commit in America is being sick.” Grimly demonstrated by the COVID-19 pandemic, hospitals serve as the central hub of American health care. Increasingly exercising market power, setting clinical...
by technology@hastingslawjournal.org | Feb 16, 2022 | Volume 73, Issue 2
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...
by technology@hastingslawjournal.org | Feb 16, 2022 | Volume 73, Issue 2
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...
by technology@hastingslawjournal.org | Feb 16, 2022 | Volume 73, Issue 2
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...
by technology@hastingslawjournal.org | Feb 16, 2022 | Volume 73, Issue 2
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...
by technology@hastingslawjournal.org | Feb 16, 2022 | Volume 73, Issue 2
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...
by technology@hastingslawjournal.org | Feb 16, 2022 | Volume 73, Issue 2
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...
by technology@hastingslawjournal.org | Feb 16, 2022 | Volume 73, Issue 2
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...
by technology@hastingslawjournal.org | Jan 19, 2022 | Volume 73, Issue 1
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...
by technology@hastingslawjournal.org | Jan 19, 2022 | Volume 73, Issue 1
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...
by technology@hastingslawjournal.org | Jan 19, 2022 | Volume 73, Issue 1
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...
by technology@hastingslawjournal.org | Jan 19, 2022 | Volume 73, Issue 1
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...
by technology@hastingslawjournal.org | Jan 18, 2022 | Volume 73, Issue 1
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...
by technology@hastingslawjournal.org | Aug 11, 2021 | Volume 72, Issue 6
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...
by technology@hastingslawjournal.org | Aug 11, 2021 | Volume 72, Issue 6
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...
by technology@hastingslawjournal.org | Aug 11, 2021 | Volume 72, Issue 6
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...
by technology@hastingslawjournal.org | Aug 11, 2021 | Volume 72, Volume 72, Issue 6
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...
by technology@hastingslawjournal.org | May 24, 2021 | Volume 72, Volume 72, Issue 5
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...
by technology@hastingslawjournal.org | May 24, 2021 | Volume 72, Issue 5
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...
by technology@hastingslawjournal.org | May 24, 2021 | Volume 72, Issue 5
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...
by technology@hastingslawjournal.org | May 24, 2021 | Volume 72, Issue 5
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...
by technology@hastingslawjournal.org | May 24, 2021 | Volume 72, Issue 5
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...
by technology@hastingslawjournal.org | Apr 19, 2021 | Volume 72, Issue 4
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...
by technology@hastingslawjournal.org | Apr 19, 2021 | Volume 72, Issue 4
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...
by technology@hastingslawjournal.org | Apr 19, 2021 | Volume 72, Issue 4
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’...
by technology@hastingslawjournal.org | Apr 19, 2021 | Volume 72, Issue 4
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...
by technology@hastingslawjournal.org | Apr 19, 2021 | Volume 72, Issue 4
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...
by technology@hastingslawjournal.org | Apr 19, 2021 | Volume 72, Issue 4
David Takacs Volume 72, Issue 4, 1275-1278 Full...
by technology@hastingslawjournal.org | Apr 19, 2021 | Volume 72, Issue 4
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...
by technology@hastingslawjournal.org | Apr 19, 2021 | Volume 72, Issue 4
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...
by technology@hastingslawjournal.org | Apr 19, 2021 | Volume 72, Issue 4
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....
by technology@hastingslawjournal.org | Feb 28, 2021 | Volume 72, Issue 3
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...
by technology@hastingslawjournal.org | Feb 28, 2021 | Volume 72, Issue 3
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...
by technology@hastingslawjournal.org | Feb 28, 2021 | Volume 72, Issue 3
Elissa Philip Gentry & Benjamin J. McMichael Volume 72, Issue 3, 827-870 Unlike past public health crises, the opioid crisis arose from within the healthcare system itself. Entities within that system, particularly opioid manufacturers, may bear some liability in...
by technology@hastingslawjournal.org | Feb 28, 2021 | Volume 72, Issue 3
Adam M. Gershowitz Volume 72, Issue 3, 871-918 Imagine that a medical board revokes a doctor’s license both because he has been peddling thousands of pills of opioids and also because he was caught with a few grams of cocaine. The doctor is a family physician, not a...
by technology@hastingslawjournal.org | Feb 28, 2021 | Volume 72, Issue 3
Lauren Trambley Volume 72, Issue 3, 919-958 Although California was by no means an affordable state to reside in prior to 2008, Californians are still experiencing the reverberating effects of the collapse of the housing market in its present affordable housing...
by technology@hastingslawjournal.org | Feb 28, 2021 | Volume 72, Issue 3
Robert Wu Volume 72, Issue 3, 959-998 In the first three years of Public Service Loan Forgiveness (PSLF), over 227,000 borrowers applied for relief. The U.S. Department of Education granted relief to less than 3800 borrowers, denying forgiveness to roughly 98% of the...
by technology@hastingslawjournal.org | Feb 4, 2021 | Volume 72, Issue 2
Mark Glick, Catherine Ruetschlin, & Darren Bush Volume 72, Issue 2, 465-516 Big Tech is on a buying spree. Companies like Apple, Google, Facebook, and Amazon are gobbling up smaller companies at an unprecedented pace. But the law of competition isn’t ready for Big...
by technology@hastingslawjournal.org | Feb 4, 2021 | Volume 72, Issue 2
Ariel Jurow Kleiman Volume 72, Issue 2, 517-564 The public finance literature tells us that user fees will introduce market-like efficiency to public good provision. Meanwhile, criminal justice scholars note that criminal justice fees have run amok, causing crippling...
by technology@hastingslawjournal.org | Feb 4, 2021 | Volume 72, Issue 2
Amy R. Motomura Volume 72, Issue 2, 565-626 This Article analyzes a conflict between innovation and the patent system: innovation is a dynamic, iterative process, but a patent reflects only a single snapshot in time. Despite extensive scholarly and judicial discussion...
by technology@hastingslawjournal.org | Feb 4, 2021 | Volume 72, Issue 2
Scott J. Shackelford & Scott O. Bradner Volume 72, Issue 2, 627-662 As Internet-connected devices become ubiquitous, it remains an open question whether security—or privacy—can or will scale, or whether a combination of perverse incentives, new problems, and new...
by technology@hastingslawjournal.org | Feb 4, 2021 | Volume 72, Issue 2
Samuel Bayer Volume 72, Issue 2, 663-686 California has long permitted dual agency representation in residential real estate transactions, and consumers have long maligned the practice as presenting an unavoidable conflict of interest. However, dual agency provides...
by technology@hastingslawjournal.org | Feb 4, 2021 | Volume 72, Issue 2
Thomas Davis Volume 72, Issue 2, 687-718 Late 2017 marked, perhaps, the peak of Bitcoin frenzy. A number of specious, if not outright fraudulent issuers took advantage of this craze by publicly listing their stock while touting some connection to blockchain...
by technology@hastingslawjournal.org | Nov 24, 2020 | Volume 72, Issue 1
David M. Driesen Volume 72, Issue 1, 1-54 The debate over the unitary executive theory—the theory that the President should have sole control over the executive branch of government—has proven extremely parochial. Supporters of the theory argue that the original...
by technology@hastingslawjournal.org | Nov 24, 2020 | Volume 72, Issue 1
Luca Enriques & Dirk A. Zetzsche Volume 72, Issue 1, 55-98 This Article introduces the term Corporate Technologies (“CorpTech”) to refer to the use of distributed ledgers, smart contracts, Big Data analytics, artificial intelligence and machine learning in the...
by technology@hastingslawjournal.org | Nov 24, 2020 | Volume 72, Issue 1
James P. George Volume 72, Issue 1, 99-168 The United States has attempted for years to create a more efficient enforcement regime for foreign-country judgments, both by treaty and statute. Long negotiations succeeded in July 2019, when the Hague Conference on Private...
by technology@hastingslawjournal.org | Nov 24, 2020 | Volume 72, Issue 1
Mark Moller & Lawrence B. Solum Volume 72, Issue 1, 169-228 Article III confers the judicial power of the United States over controversies between “citizens” of different states. In Section 1332(c) of Title 28 of the United States Code, Congress has provided that...
by technology@hastingslawjournal.org | Nov 24, 2020 | Volume 72, Issue 1
Bryce Clayton Newell & Bert-Jaap Koops Volume 72, Issue 1, 229-290 The search of a smartphone by the police in connection with an arrest carries the potential to intrude into the very core of an arrestee’s private life. Indeed, such a search has been compared to...
by technology@hastingslawjournal.org | Nov 24, 2020 | Volume 72, Issue 1
Alix Rogers Volume 72, Issue 1, 291-336 Under contemporary American law, human corpses and some bodily parts are classified as quasi-property. Quasi-property is an American legal conception composed of limited interests that mimic some of the functions of property,...
by technology@hastingslawjournal.org | Nov 24, 2020 | Volume 72, Issue 1
Joan C. Williams, Rachel M. Korn & Sky Mihaylo Volume 72, Issue 1, 337-464 This Article joins other voices in challenging what I will call the “implicit bias consensus” in employment discrimination law, first crystallized in the work of Susan Sturm and Linda...
by technology@hastingslawjournal.org | Aug 1, 2020 | Volume 71, Issue 5
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...
by technology@hastingslawjournal.org | Aug 1, 2020 | Volume 71, Issue 5
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...
by technology@hastingslawjournal.org | Aug 1, 2020 | Volume 71, Issue 5
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...
by technology@hastingslawjournal.org | Aug 1, 2020 | Volume 71, Issue 5
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’...
