California Law Review最新文献

{"title":"Improving the Housing Choice Voucher Program through Source of Income Discrimination Laws","authors":"M. Rofael","doi":"10.15779/Z38QF8JK1D","DOIUrl":"https://doi.org/10.15779/Z38QF8JK1D","url":null,"abstract":"The Housing Choice Voucher (“HCV”) program is a government program that subsidizes the rent of low-income individuals or families, allowing them to afford housing in the private market. Families pay 30 percent of their income towards rent, and the voucher covers the remainder. Congress created the program with the goal of enabling low-income families to live in high-opportunity neighborhoods, thereby improving family outcomes and eliminating the concentrations of poverty often seen with other low-income housing programs. This goal has failed, however, largely due to landlord discrimination against voucher holders. Many families are unable to find housing that will accept their voucher. For families that do find housing, they are unable to access the low-poverty neighborhoods the HCV program promised. For families of color, discrimination has an especially significant effect. To improve the success of the HCV program, this Note argues that policymakers must limit the ability of landlords to refuse to accept HCVs and that the most effective method for doing so is through Source of Income (“SOI”) discrimination laws that prohibit discrimination against voucher holders.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67533370","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Confronting Mass Incarceration: Lecture from the 2018-2019 Jorde Symposium","authors":"James L. Forman","doi":"10.15779/Z38XK84Q9P","DOIUrl":"https://doi.org/10.15779/Z38XK84Q9P","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67586066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Regulating the Most Accessible Marketplace of Ideas in History: Disclosure Requirements in Online Political Advertisements After the 2016 Election","authors":"Brian Beyersdorf","doi":"10.15779/Z38C53F20R","DOIUrl":"https://doi.org/10.15779/Z38C53F20R","url":null,"abstract":"The libertarian regulatory environment of online political advertising has come under scrutiny again, as news reports continue to come out describing the extent of Russian interference with the 2016 presidential election. For years, Silicon Valley has resisted Washington, D.C.’s efforts to regulate online political advertising. Tech companies feared regulation would threaten not only their business models, but also the Internet’s status as the “most accessible marketplace of ideas in history.”1 But can America’s democracy continue to tolerate lax regulation of online political advertising? Overwhelming evidence of Russian operatives spreading divisive messages across online platforms during the 2016 presidential election demands a government response. In fact, Congress is now debating the Honest Ads Act, and the Federal Election Commission is considering implementing regulations to increase the transparency of online political advertisements. With the specter of regulation, Facebook, Google, and Twitter have updated their policies governing online political advertising.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67446531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bidding Farewell to Constitutional Torts","authors":"R. Fallon","doi":"10.15779/Z38NK3654F","DOIUrl":"https://doi.org/10.15779/Z38NK3654F","url":null,"abstract":"The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure—not only among the Justices, but also among leading scholarly critics—to see interconnected problems in a sufficiently broad frame.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67514754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional Remedies in Federalism's Forgotten Shadow","authors":"Stephen I. Vladeck","doi":"10.15779/Z38TB0XV9X","DOIUrl":"https://doi.org/10.15779/Z38TB0XV9X","url":null,"abstract":"For decades, courts and commentators have vigorously debated how the relationship between common-law and statutory writs of habeas corpus in pre-revolutionary England should inform our understanding of the U.S. Constitution's Suspension Clause, which, as the Supreme Court has held, enshrines access to the writ \"at least as it existed in 1789.\" One of the many lessons to emerge from this discourse is how the elimination of access to the common-law writ in state court, through a combination of legislation and judicial decisions, raised the constitutional stakes when Congress later sought to restrict federal statutory habeas, as manifested in the Supreme Court's landmark (if controversial) 2008 ruling in Boumediene v. Bush. \u0000 \u0000In this essay, prepared in conjunction with the California Law Review's symposium on Professor Amanda Tyler's new book, \"Habeas Corpus in Wartime,\" I seek to take some of the lessons from the habeas debates and apply them to a different species of constitutional remedy—damages suits against federal officers for constitutional violations, today known as \"Bivens\" claims after the 1971 decision that first recognized such judge-made remedies under federal law. As in the habeas context, a combination of statutory intervention and judicial constriction has all-but eliminated what used to be a rich and robust array of judge-made constitutional remedies against federal officers in state courts and under state law. As late as 1963, the Supreme Court thought it uncontroversial that, \"[w]hen it comes to suits for damages for abuse of power, federal officials are usually governed by local law.\" Thanks to a series of intervening developments, victims of constitutional violations by federal officers today, in contrast, are often left to judge-made federal damages remedies or nothing—and, especially in light of the Supreme Court's 2017 ruling in Ziglar v. Abbasi, increasingly, nothing. \u0000 \u0000More often than not, modern judicial hostility to judge-made damages remedies against federal officers is pitched, as in Abbasi, in terms of the separation of powers—and the extent to which unelected federal judges should stay their hand before providing damages remedies that Congress has not seen fit to expressly authorize. But as this essay argues, this reasoning reflects historical amnesia as to the role of state law and state courts in holding federal officers to account, leaving observers with the misimpression that serious separation-of-powers concerns arise from federal judicial recognition of implied causes of action when the true question these cases present—or, at least, should present—actually sounds in federalism. Although that conclusion may itself suggest that the relevant decisionmakers should be more amenable to allowing federal constitutional claims to be resolved by state courts and/or under state law in the first instance, at the very least, it suggests that federal judges should not take quite as dim a view as has become commonplace rega","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48731699","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legislating for Litigation: Delegation, Public Policy, and Democracy","authors":"Sean Farhang","doi":"10.15779/Z38Z892F6Q","DOIUrl":"https://doi.org/10.15779/Z38Z892F6Q","url":null,"abstract":"When Congress enacts command-and-control regulation, it chooses between implementation through litigation and courts, through bureaucracy, or through a hybrid regime. Since the late 1960s, the frequency with which Congress has relied on civil litigation for frontline enforcement of statutes grew dramatically, and with it grew rates of federal statutory litigation and the role of courts in federal regulatory policy. By the late 1970s, and with increasing intensity over the decades, a critique of these developments emerged that included two core themes. Relative to administrative implementation, direct enforcement through civil litigation (1) weakens democratic control over public policy because litigants and federal judges are harder for the elected branches to control than bureaucracy, and (2) degrades the quality of public policy because the judiciary is a less capable policy-making infrastructure than bureaucracy. \u0000This Article argues that Congress’s reliance on frontline enforcement through civil litigation is associated with how specifically it articulates substantive policy in the statute, versus how much policy-making discretion it delegates to implementing agents. When legislative coalitions rely heavily on civil litigation for implementation, they have incentives to focus more attention and effort on developing and articulating policy substance in the statute, and to leverage more mandatory and specific administrative rulemaking power. The institutional attributes of litigation and courts that make them more challenging to supervise and influence during postenactment implementation, and that render them a less capable policy-making apparatus, create these incentives. This theoretical account contradicts existing arguments offered by the relatively few scholars to consider the relationship between the legislative choice of enforcement through civil litigation, and how much policy substance Congress lays down in the statute. \u0000This Article deploys original data to investigate this theory and its rivals. The data contain granular information about the policy content of significant federal regulatory legislation passed between 1947 and 2008, and about the level of attention and effort legislators and witnesses in committee hearings focused on it. Empirical analysis demonstrates that Congress focused more than twice as much attention in legislative hearings on parts of regulatory statutes relying heavily on civil litigation for implementation, and elaborated policy in those parts of statutes in about twice as much detail. When relying substantially on civil actions, Congress was also much more likely to delegate administrative rulemaking authority, thereby leveraging more administrative expertise and enlarging congressional capacity to influence substantive elaboration of the statute via agency oversight powers. \u0000Ultimately, this Article argues that meaningful assessment of the democratic and public policy consequences of legislative reliance o","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44051954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security","authors":"Robert M. Chesney, D. Citron","doi":"10.2139/SSRN.3213954","DOIUrl":"https://doi.org/10.2139/SSRN.3213954","url":null,"abstract":"Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors. While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace of ideas already suffers from truth decay as our networked information environment interacts in toxic ways with our cognitive biases. Deep fakes will exacerbate this problem significantly. Individuals and businesses will face novel forms of exploitation, intimidation, and personal sabotage. The risks to our democracy and to national security are profound as well. Our aim is to provide the first in-depth assessment of the causes and consequences of this disruptive technological change, and to explore the existing and potential tools for responding to it. We survey a broad array of responses, including: the role of technological solutions; criminal penalties, civil liability, and regulatory action; military and covert-action responses; economic sanctions; and market developments. We cover the waterfront from immunities to immutable authentication trails, offering recommendations to improve law and policy and anticipating the pitfalls embedded in various solutions.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3213954","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46119886","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On Love and Lawyering: A Celebration of the East Bay Community Law Center","authors":"S. Patel","doi":"10.15779/Z38NZ80Q36","DOIUrl":"https://doi.org/10.15779/Z38NZ80Q36","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42431168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Not-Quite-Accidental Genius of EBCLC’s Consumer Justice Clinic: Lessons for Legal Services Providers","authors":"T. Mermin","doi":"10.15779/Z38XD0QX7Z","DOIUrl":"https://doi.org/10.15779/Z38XD0QX7Z","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45580341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taking Intellectual Property into Their Own Hands","authors":"A. Adler, Jeanne Fromer","doi":"10.15779/Z38KP7TR8W","DOIUrl":"https://doi.org/10.15779/Z38KP7TR8W","url":null,"abstract":"When we think about people seeking relief for infringement of their intellectual property rights pursuant to copyright and trademark laws, we typically assume they will operate within an overtly legal scheme of cease-and-desist letters, notice-and-takedown requests, litigation, or settlement. Quite by contrast are those who assert extralegal norms within a tight-knit community to remediate copying of creative works like tattoos, recipes, jokes, roller derby pseudonyms, and magic, which lie outside the subject matter—or at least the heartland—of these intellectual property laws. In recent years, however, there has been a growing third category of relief-seekers: those taking intellectual property into their own hands as a way to seek relief outside the legal system for copying of works well within the heartland of copyright or trademark laws, such as visual art, music, and fashion. Moreover, they can do so successfully across different artistic communities or in the absence altogether of any discrete community—that is, without the backdrop of a single close-knit community, which legal scholars tend to see as a prerequisite to enforcing extralegal norms. They exercise intellectual property self-help in a constellation of related ways. Most frequently, they use shaming, principally through social media or a similar platform to call out perceived misappropriations. Other times, they reappropriate perceived misappropriations, therein generating yet new creative works. This Essay identifies, illustrates, and analyzes this phenomenon using a diverse array of recent examples, including the Suicide Girls’ retaking of Richard Prince’s copies of their Instagram photos, Gucci’s hiring of street artist GucciGhost for a recent fashion collaboration, a number of intellectual property diss songs at the center of hip hop, James Turrell’s calling out of Drake for using artwork reminiscent of Turrell’s in a popular music video, and Instagram phenomenon Diet Prada, which devotes itself to shaming copycats in fashion. Aggrieved creators can use self-help of the sorts we describe to accomplish much of what they could hope to derive from successful infringement litigation: collect monetary damages, insist on attribution to them of their work, and correct potential misattributions to them of a misappropriation. We evaluate how to assess the benefits and demerits of intellectual property self-help, as compared with more traditional intellectual property enforcement. We hold out more hope for the promise of self-help through retaking of copies than through social media shaming. Reappropriations, at their core, provide society with new artistic creations. Reappropriators turn the intellectual property paradigm on its head, by seeing infringement as a moment for creativity, rather than as a block to creativity. Social media shaming gives far less to the public, at least artistically.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48485409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}