University of California Hastings College of the Law
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Academic Village Finance Authority Board of Directors Meeting - Notice and Agenda 12/06/2024
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Calculating the Harms of Political Use of Popular Music
No full textWhen Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies. Putting the intricacies of copyright licensing aside, what motivates artists to object to the use of their songs by political campaigns? This Article identifies and measures three types of harm artists may reasonably fear. First, an artist may worry that campaign use of their song will harm its market value and popularity. To test that theory, we examine a novel set of industry streaming data to identify any meaningful shifts in streaming consumption after well-publicized campaign uses. Second, campaign use may falsely lead the public to believe that an artist supports or endorses a candidate. And third, an artist may fear a tarnishment effect. That is, consumers may negatively associate the artist or their music with an unpopular candidate even in the absence of any perceived endorsement. We test the endorsement and tarnishment theories through an experimental design that measures consumer reactions to a set of hypothetical campaign uses. Our data paint a complicated picture. We find some evidence that songs used by the Trump campaign suffered a drop in streaming consumption, but we cannot conclude that campaign use drove that reduced popularity. We also find strong evidence that an artist’s perceived support or endorsement of a candidate is material to consumers. But consumers do not appear to infer that an artist endorses a candidate when their campaign uses that artist’s song. Finally, we found that less well-established artists are most likely to suffer from tarnishing associations when their songs are used by divisive politicians. Our results do not fully resolve the thorny doctrinal and normative questions at the heart of these controversies, but they do offer a crucial empirical grounding for a recurring policy debate
The Case for Downsizing the Corporate Attorney-Client Privilege
No full textPrivilege is a choice. In crafting evidentiary privileges, courts and policymakers have fashioned a rule that concedes that some things are more important than getting to the truth. Indeed, our entire law of privilege stems from the fact that society deems certain relationships important enough to protect their communications even from the truth-seeking process of litigation. The attorney-client relationship is a paradigmatic example. But something has gone seriously wrong with the law’s attempts to transplant protections for an intimate, confessional space for communications between an individual and their attorney onto “artificial creatures of the law”: the modern corporation.
Today’s corporate attorney-client privilege now shields communications across entire constellations of relationships among corporate agents. And as the lines between business and legal advice blur and lawyers become ubiquitous in all aspects of corporate life, an even greater universe of documents and communications may fall outside the bounds of litigation. Privilege logs often obscure the true nature of withheld communications and only moneyed litigants may be able to call an over-withholder’s bluff.
This Article proposes a sea change in the corporate privilege by arguing that courts should restrict recognition of the corporate attorney-client privilege to communications that take place in the context of a Privileged Communications Committee. While some scholars have called for the complete elimination of the privilege for corporate clients, this Article takes a more nuanced view, recognizing that some of the needs underlying the original impetus for the privilege still exist in the corporate context. The problem is that courts have landed on the wrong corporate analog for a human client. The use of a Privileged Communications Committee would serve to reset the balance, drawing the reality of the corporate privilege closer to the judicially articulated justifications for its existence
Washington Cares: Other States Should Too
No full textThe United States is facing a growing challenge in financing long-term care as the population ages and the demand for these services continues to grow. The cost of long-term care can be exorbitant, with many individuals and families struggling to afford the care they need. The baby boomer generation and their families are facing the challenges of aging, which will be exacerbated by a lack of funding for long-term care. Given unmarketable private insurance policies and Medicaid’s spend down strategy, among other issues, the United States needs a feasible financing solution for long-term care.
In response to this challenge, Washington state has created Washington Cares Fund (“WA Cares”), a unique benefits program which provides qualifying Washingtonians with a benefit used to purchase long-term care services. The program is funded through a payroll tax equal to 0.58 percent of certain employees’ wages, and those eligible can access care costing up to $36,500—adjusted annually for inflation—over their lifetime. While the program is more affordable and equitable than other current options, some argue that the benefit is insufficient, and there are concerns about the program’s solvency and legality. Despite these criticisms, programs like WA Cares are innovative and necessary solutions to the increasingly daunting long-term care financing crisis. Other states should examine the program and consider whether a progressive social insurance benefit could be a possible solution to their own long-term care financing goals. This Note explores the strengths and weaknesses of WA Cares and similar efforts made in other states to raise funding for long-term care
