University of California Hastings College of the Law
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Defending Children’s Data Privacy: Strategies for the 21st Century
No full textChildren’s use of social media has been linked to an overwhelming number of adverse effects on their mental health, privacy, and well-being. There is a general consensus among parents, researchers, and lawmakers that children’s online protections must be expanded. However, recent legislative efforts to effect change have been met with consistent failure. Recently, California, Arkansas, and Texas passed new legislation intended to bolster existing protections and expand child privacy online. The Arkansas law and portions of the California and Texas laws do not pass constitutional muster under current case law, and all three federal district courts articulated their inability to permit these proposed protections within First Amendment precedential confines.
The present framework is outdated, unsuitable, and overly narrow for application to today’s online context. Assumptions about the internet at the time this case law was developed are counterfactual in 2025. A reconsideration of existing Supreme Court First Amendment precedent to sanction greater regulation of child safety online is critical to setting up an expansive framework in which child protections can be prioritized. Pending the Supreme Court’s revision of First Amendment precedent, lawmakers are not without options. Legislators can initiate solutions that are permissible under the existing framework, including cell phone bans in schools, restrictions on access to obscene materials, increased regulations on data collection and sales or the use of dark patterns, and funding programs that educate parents and children about safe online practices. Though assembling a patchwork of narrow regulations this way may be effective, the Supreme Court needs to update its First Amendment framework to make space for policymakers to broadly expand privacy laws and create a robust defense against technology related harms to minors
In Search of the Best Policies for Translational Geroscience
No full textThough it once seemed like an inevitable fact of life, geroscience can now credibly promise to slow and even reverse aging. New geroscience treatments offer the prospect of large increases in human welfare and will attract huge demand. How can governments best support research, development, and commercialization of the field? The answer will depend on many factors, including public policies, supply-side resources, and market size. This paper focuses on the first factor, seeking the best public policies for translating geroscience from bench to bedside. It begins with a review of current geroscience policy, identifying the rules and institutions that help or hinder innovation in anti-aging healthcare. The paper then combines facts with theory to suggest ways to improve geroscience policy. It starts with a model policy that reverses the usual precautionary prohibition on unapproved medical treatments and instead opens access to them, subject to a variety of conditions including risk disclosures, strict liability for defective manufacture, design, or documentation, and other common law protections. Something close to that model policy recently became law in two jurisdictions. Most jurisdictions remain far from that ideal, however, so the paper also describes seven pragmatic near-term reforms to promote anti-aging medicines. If limited to fixing one immediate problem, reformers should convince regulators to accept biomarkers as standards for evaluating anti-aging treatments. The paper concludes by describing a near possible future where geroscience can fulfill its potential to cure human aging safely and effectively
Generative Privacy Doctrine: The Case For A New Legal Privacy Framework For Gen^Ai
No full textFrom quills to queries, from secrets once scrawled in private to personal prompts on glowing screens, debates over privacy rights endure. Generative Artificial Intelligence (GenAI) further confounds by conflating confession with code, and intimate thoughts with algorithms. Although technologists have predicted AI’s ascent before, and have critically assessed privacy rights for decades, the unprecedented engagement with GenAI following OpenAI’s public launch of ChatGPT marks a distinct moment— one where a generation of rights holders actively builds and converses with emerging platforms while the law strains to keep pace.
Existing privacy doctrines are ill-prepared for GenAI’s dynamic data processing and its power to extract insights from seemingly benign interactions. Appellate decisions like United States v. Warshak (6th Cir.)(recognizing email’s heightened privacy expectations), and hiQ Labs, Inc. v. LinkedIn Corp. (9th Cir.)(questioning limits on data scraping), along with Supreme Court precedent such as Carpenter v. United States (applying mosaic theory to reveal “deeply revealing” data), signal evolving protections in the digital realm. Yet these precedents do not fully anticipate GenAI’s capacity to co-create novel personal information.
This article argues we have reached a critical juncture requiring a refreshed legal framework. It introduces the term “Gen^AI” to highlight this unique convergence: a technological leap (GenAI) and the generation navigating its constitutional and privacy implications (the AI Generation). In response, it offers the Generative Privacy Doctrine (“GPD”)—a flexible legal framework that recalibrates privacy rights in real time. GPD tackles inferential data creation, mandates iterative user consent, and imposes carefully tailored third-party restrictions that deter exploitative or discriminatory use. Aligning with global data-protection norms (e.g., the GDPR) and clarifying domestic principles (including the “third-party doctrine” and contractual consent), GPD offers a way to protect individual dignity without stifling AI innovation
“HIPPO” Law Law and the Biodiversity Crisis of Habitat Loss, Invasive Species, Pollution, Population, and Overharvesting
No full textThis article explores the critical issue of biodiversity loss through the lens of the “HIPPO” acronym coined by Edward O. Wilson: Habitat loss, Invasive species, Pollution, Population, and Overharvesting. It examines the ecological and social ramifications of declining biodiversity and assesses existing legal frameworks aimed at mitigating these threats. Furthermore, the article proposes innovative legal mechanisms to address each HIPPO factor, offering a legal approach that spans many different domains. By integrating comparative legal analysis and suggesting forward-looking legal reforms, this work aims to contribute to the conservation efforts essential for sustaining biodiversity in the face of escalating environmental challenges
Litigation as Accommodation
No full textAs persistent threats to the integrity of some of our most important public institutions remind us, every public institution faces the challenge of combating the abuse of its powers for ends inconsistent with the public values it aims to serve. Public law employs a distinctive set of strategies for addressing that challenge: vesting institutional powers with public officials, imposing public-regarding duties on those officials, and ensuring compliance with the duties by subjecting officials’ decisions to various forms of oversight and accountability.
This Article argues that the public institution of civil litigation pursues a very different strategy for countering abuse from public law’s, one that belies predominant scholarly understandings of civil procedure and reveals an inherent, ineliminable tension within any liberal civil justice system between the impartial public values such a system espouses and the significant degree of partiality it must permit parties to display for their own personal interests, relationships, and moral beliefs. Parties can end up exercising their partiality by engaging in litigation conduct that contravenes important public values. And yet, it turns out that civil procedure doesn’t always suppress such conduct, but often tolerates, and sometimes even facilitates, it. The result is that civil procedure frequently declines to compel parties to internalize all the moral costs of their litigation conduct, thus affording them a series of moral subsidies. Those moral subsidies, this Article contends, are best understood as a kind of accommodation, which in other contexts has been theorized as the tolerated externalization of some of the costs—including the moral costs—of individual conduct for the sake of autonomy and other personal values.
By better comprehending civil procedure’s accommodations and their normative logic, we can more readily appreciate conflicts between parties’ personal interests and moral beliefs, on the one hand, and, on the other, the public values we expect the civil justice system to reflect or promote, as well as more candidly debate the resulting value tradeoffs. And while those tradeoffs are inevitable, this Article identifies current practices in civil procedure that appear either to confer significant moral subsidies even in the absence of substantial personal interests or to fail to adequately accommodate such interests. The most fundamental lesson of civil procedure’s accommodations, however, is that, in contrast both to public law’s strategies for addressing abuse and to prevailing accounts of civil procedure, litigation’s adversarial architecture constrains— and often compromises—the pursuit of public values through the civil justice system in order to respect parties’ competing pursuit of their own personal interests and moral beliefs
Surveying Cyber Espionage: A Growing Threat to Businesses, The Economy, and Our Privacy
No full textAmericans are quick to celebrate the release of new technology each year; and, while advancing technology is exciting, it also creates challenges for American businesses, the U.S. Economy, and Americans’ right to privacy. As more businesses rely on vulnerable technology, cyber espionage raises critical issues such as the exposure of trade secrets, privacy breaches, loss of revenue, and more. This Article first explores the history of cyber espionage, describing major cyberattacks on American businesses and their consequences. It then explains why the legal framework regulating cybercrimes is inadequate due to the increased sophistication of modern cyber spies and their ability to conceal their identities. This Article also advocates for steps the U.S. must take to mitigate future cyber espionage attacks, including updating international laws, encouraging cross-border cooperation, clarifying ambiguities in the current legal framework, and adopting comprehensive privacy laws