University of California Hastings College of the Law
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Getting Off Off-Duty: The Impact of Dobbs on Police Officers’ Private Sexual Lives
No full textUpon its leak and subsequent official release, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization shocked and worried the nation. Overnight, the Court overturned forty-nine years of precedent. Those forty-nine years of overturned precedent not only implicate the ability to obtain abortion, but also the ability to engage in relationships, marry, make decisions about our own body, and keep our personal lives private. As a result, many advocates worry about the status of fundamental rights since many of those rights relied on the now overturned cases Roe v. Wade and Planned Parenthood v. Casey as well as the legal reasoning within those cases. As public employees with unique public safety duties, police officers are no strangers to department regulation of their conduct, both off- and onduty. Officers previously challenged adverse employment actions taken against them for off-duty conduct by arguing that the police department violated their right to privacy. Now, with the right of privacy on shaky ground due to the Dobbs decision, the future of officer success in these actions is uncertain. This note analyzes exactly how the Dobbs decision changes the legal landscape for securing fundamental rights. Following an analysis of the case, the note highlights the new challenges officers must overcome in order to successfully protect their private sexual lives from government intrusion. While this note argues that success is difficult, alternative strategies exist which may help secure off-duty sexual privacy for all
The Spy in Your Pocket: Montana’s TikTok Ban and the Federalism Limits of State-level Foreign Policy
No full textIn May 2023, Montana became the first state in America to ban the social media app TikTok. This article proposes a two-prong analytical framework for evaluating the federalism limits of Montana’s TikTok ban (SB 419) and similar laws that other states might enact in the future. The first prong is a mandatory constitutional analysis of whether the state law runs afoul of restrictions on states’ foreign policy powers. These limits are threefold— Article I, Section 10, preemption, and the dormant Commerce Clause. This article focuses on federalism limits that only the states face and does not explore other constraints that the federal government might face, such as the First Amendment’s rights to free speech and association. The second prong is an optional, persuasive policy analysis of whether the state law makes sense based on concepts and data from economics. Applying this framework, SB 419 should fall as a matter of law and policy
Reproducing Inequality: Racial Capitalism and the Cost of Public Education
No full textAmerican democracy is marked by an unwavering deployment of racialized economic modalities of fines, fees, and debt aimed at scaffolding hierarchies of white power and prescribing Black people as commodities, not human beings. Over the last two decades, an expanding praxis in the economic justice field has emerged, opposing and disrupting racialized economic logics within a national anti-fine, fee and cost movement. From scholarly discourse to legal interventions and reforms at city- and county-levels, the movement has sought to target interlocking material and ideological forces that comprise racial capitalist geographies across many criminal and civil systems. Despite this significant work, however, the distinctly racialized dispossessive and extractive economic realities of fines and fees regimes in other public state systems, namely K–12 public education, have escaped interrogation and advocacy. This Article serves to fill that gap at three levels—theoretical, analytic, and prescriptive—presenting an incisive critique of public education absent from the existing legal literature and highlighting explicating existing remedies available to civil rights education attorneys to protect Black students and families. In advancing racial capitalism as its constructive feature, this Article does not simply rely on a theoretical approach. Instead, it employs critical theory and social science methodologies, drawing on an original dataset of firsthand accounts of clients and analyses of more than seven hundred different published and publicly-available individual public school, charter school, cyber charter school, and district handbooks and codes of conduct. The data illuminates how public education functions across key dynamics of racial capitalism—accumulation, dispossession, debt, punishment, and containment. This work thus contributes richly to legal scholarship and legal practice by attending to an undertheorized yet formative area of critical theory, and exposing the operation of racial capitalism through a familiarly racially evasive modality that fundamentally undermines Black students’ access to their education
