University of California Hastings College of the Law
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Honoring Indigenous Sovereignty and Consent: Legal Frameworks for Addressing Indigenous Displacement Due to Climate Change
No full textClimate change-induced displacement is not only a possibility but a present reality. This problem affects marginalized communities everywhere, but Indigenous peoples, particularly those in disappearing States, are especially climate-vulnerable and often at risk of losing their ancestral lands forever due to climate change. Despite the inevitability and urgency of this issue, there are currently no legal frameworks specifically designed to address the issue of Indigenous sovereignty amidst climate-change induced displacement. Thus, this paper seeks to identify and examine the legal frameworks that can be used and extended to protect Indigenous sovereignty when environmental displacement occurs. The only protections Indigenous peoples can currently utilize flow from consultation and participatory rights, such as the duty to consult, and the right to free, prior, and informed consent under ILO Convention 169 and the UNDRIP, respectively. On the other hand, for internally displaced peoples, the relevant legal frameworks are the UN Guiding Principles on Internal Displacement and the Kampala Convention, which are not designed to address environmental displacement either. This Article critiques the existing international legal frameworks for their roots in colonialism and argues for the need to overhaul the entire international system in the face of complex, global problems like climate change, environmental displacement, and Indigenous sovereignty rights. This Article argues that these challenges can be addressed by having Indigenous peoples be the key decision-makers of their own destinies, rather than mere procedural consultants, particularly in future negotiations about relocation and resettlement from their ancestral lands due to climate change
The Undignified First Amendment
No full textMany commonly understand the constitutional right of free speech as an individual right of expression. One reason for this is the ascendance of the dignitarian or autonomy theory of free speech, which has supplanted the marketplace and democratic conceptions as the predominant theory of speech rights in the United States. As a result, scholars, judges, and citizens usually focus on the rights of speakers. But the United States Constitution does not describe a right to speak; the First Amendment protects a right to speech. This article argues that the preoccupation with the dignitarian basis for speech as expression has distorted the doctrinal development of First Amendment case law and distracted from the historical and theoretical bases for protecting speech constitutionally. The article argues that the primary form of constitutionally protected speech is and was meant to be reciprocal communication between a speaker and a listener. Accordingly, the article differentiates expression and communication, and then demonstrates that a coherent conception of speech as a relational right of communication exists in certain important judicial opinions of the United States Supreme Court and other federal courts. The article explains that these cases articulate a doctrinal basis for differentiating between communication and expression, and for emphasizing communication over expression when we think about the speech that the First Amendment protects
The Myth of DNA Trade Secrecy
No full textAre DNA sequences subject to trade secrecy protection? At least three decades of scholarship has assumed so even while there is no explicit statutory authority directly on point and very few reported decisions in the area. And yet, an investigation into the elements of trade secrecy law— read in light of rapid advances in DNA and genomic sequencing—suggests the answer is probably, no. Those advances include the rise of cheap, accurate, easy, fast, and readily available DNA sequencing services, including the recent availability of whole human genome sequencing for less than a monthly cell phone bill. This cuts against some of the elements required for trade secret subject matter, namely, whether the sought-to-be protected information is “readily ascertainable” to the public and whether the information derives “independent economic value” from its secrecy. To date, neither caselaw nor scholarly case studies concerning genomic trade secrets have engaged with these advances. Understanding that much genomic data may not be protectable as a trade secret has several practical consequences, including the difficulty of litigating non-trade secret “stolen data” cases in federal fora; variability in enforcing nondisclosure agreements; and diminished remedies for breaches of confidence. More broadly, seeing that technological advances can upend the protectability of information once thought to be a trade secret yields several theoretical insights. It suggests that trade secrets, like some servitudes, can be terminated when faced with changed conditions. It also suggests that several defenses of trade secrecy—ready accessibility, independent derivation, and reverse engineering—are much closer to one another than typically conceived. And it demonstrates, à la the “comedy of the commons,” that work to remove trade secret protection may benefit both the former trade secret holder and the public at large. The omnipresence of next-generation DNA sequencing should spur a serious reexamination of DNA sequences as trade secrets, a belief that courts, policymakers, and scholars should now recognize is largely a myth
Who Will Speak for the Trees? How the Save Our Sequoias Act Underscores the Urgent Need to Protect Giant Sequoias and the Tule River Indian Reservation from Wildfire Destruction
No full textIncreasing rates of high-severity wildfires threaten the existence of giant sequoia trees, as well as the reservation and sacred cultural sites of the Tule River Indian Tribe. Decades of fire suppression have created a ticking time bomb across millions of acres of land. The result: the last two fire seasons alone wiped out nearly 20% of all giant sequoias on the planet and burned thousands of acres of forests across the Tribe’s land. This Article explores the ecological background and significance of the giant sequoias and their relationship to the Tribe. It then examines the existing legal framework for sequoia grove management and analyzes the proposed legal framework under the House version of the Save Our Sequoias Act. This Article highlights some of the advantages of the bill while conceding its main weaknesses, ultimately arguing that the bill could provide powerful tools for both implementing a swift and effective response to the increasing threat of high-severity wildfires in giant sequoia groves and advancing the interests, knowledge, and concerns of Indigenous people of the area—namely the Tule River Tribe
Mass Surveillance as Racialized Control
No full textThis Article examines how the expanded use of pretrial GPS surveillance is radically changing the presumption of innocence by implicating punitive measures absent constitutional protections and amplifying the racial disparities in our criminal justice system. Largely viewed as a substitution for physical detention and therefore a less onerous intrusion on a defendant’s liberty, pretrial GPS surveillance erodes fundamental liberties under the guise of criminal justice regulation. These highly racialized but invisible repercussions include harms to physical and psychological health, freedom of movement, privacy, and future economic self-determination. I argue that, in light of these substantial harms, courts must examine how they evaluate technological surveillance, affording defendants substantive and procedural due process protections where there currently are none
Case Rounds Redefined: Multidisciplinary Perspectives in Reflective Practice
No full textThis article describes the rounds process used in clinic and externship seminars and considers how adjustments to the structure can address different needs or goals. The authors draw on teaching methods found in similar professional education programs to identify options for faculty facilitating rounds. Ultimately, the authors use externship rounds to highlight lawyering skills, including developing curiosity, withholding judgment, and generating options. The authors posit that rounds facilitate deeper self-reflection and foster a sense of community by encouraging law students to work collaboratively to consider lessons learned in fieldwork. The rounds structure overview can be assigned to students before class and serve as a resource for new faculty. Additionally, the article includes supplementary materials tailored for classroom use