University of California Hastings College of the Law
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Equal Recognition for Artistic Labor: Needle Arts Are Fine Arts
No full textThis piece underscores the disparity of respect between the creations of men versus the creations of women in the art world. “Needle Arts Are Fine Arts” reflects the reality that acquiring the knowledge and skill needed to create high-quality works of needle art often takes decades to develop. However the gendered perception of needle arts often means that these beautiful art pieces are designated as mere “crafts.” This historical bias has led to the devaluation of needle art pieces: even those displayed in museums worldwide often remain unattributed, with their female creators relegated to anonymity because their work was not properly recognized during their lifetimes.
In this work the artist designed the alphabetic font and spacing in the style of protest posters, drawing inspiration from rebellious artists such as the Guerilla Girls. The stitching technique is a deceptively simple-looking style of needle art called “chicken scratch embroidery.” Popular with women in rural areas during the twentieth century, this style intricately embroiders each square with a star-patterned arrangement of six stitches. The fabric is a vintage flour sack and reflects the resourcefulness of women who reinforce the resilience of their rural communities through creative recycling.
The patience and practice needed to transform fabric into stitched treasures are finally starting to receive the recognition they deserve in artistic communities worldwide. The artist hopes this trend continues to grow in the years to come
“Engines of the Ruling Party”: The Establishment Clause and the Power Politics of “Managing Diversity”
No full textPartnering Law and Biodiversity for Healthy Coastal Communities: Restorative Ocean Farming
No full textThis article argues that states should take immediate, incremental steps toward supporting Restorative Ocean Farming (ROF). The health of our coastlines, for both the human and nonhuman communities, depends on high marine biodiversity, a goal which ROFs support. Presenting vast amounts of evidence that ROFs have an incredible amount of ecological and socio-economic benefits, ROFs also provide one step in the critical paradigm shift of improving ocean and coastal policy by taking a more holistic approach. This includes an emphasis on bioregional cooperation to ensure the highest ecological and social benefits. Waiting on federal legislation is waiting too long. However, states can look to previous attempts at federal legislation, like the Ocean-Based Climate Solutions Act, to guide their own law and policies. Additionally, there are examples of successful bioregional cooperation, like the California Ocean Acidification Action Plan, to guide states in creating policy and plans, uniting communities and increasing coastal resilience. The author concludes that states can take meaningful action now that provides equitable benefits to coastal communities and the nation. Perhaps most importantly, the emergence of ROFs in the United States signals a perspective shift away from policies with an extractive approach toward those that create mutually beneficial relationships between humans and their habitat by basing our interaction with the world on questions like “how does the ecosystem want to support us?
Scientific Guidelines for Evaluating the Validity of Forensic Feature-Comparison Methods
No full textWhen it comes to questions of fact in a legal context— particularly questions about measurement, association, and causality—courts should employ ordinary standards of applied science. Applied sciences generally develop along a path that proceeds from a basic scientific discovery about some natural process to the formation of a theory of how the process works and what causes it to fail, to the development of an invention intended to assess, repair, or improve the process, to the specification of predictions of the instrument’s actions and, finally, empirical validation to determine that the instrument achieves the intended effect. These elements are salient and deeply embedded in the cultures of the applied sciences of medicine and engineering, both of which primarily grew from basic sciences. However, the inventions that underlie most forensic science disciplines have few roots in basic science, and they do not have sound theories to justify their predicted actions or results of empirical tests to prove that they work as advertised. Inspired by the “Bradford Hill Guidelines”—the dominant framework for causal inference in epidemiology—we set forth four guidelines that can be used to establish the validity of forensic comparison methods generally. This framework is not intended as a checklist establishing a threshold of minimum validity, as no magic formula determines when particular disciplines or hypotheses have passed a necessary threshold. We illustrate how these guidelines can be applied by considering the discipline of firearm and tool mark examination
Rewarding Failure with Patents
No full textIt is axiomatic that patents promote success. And yet, a contrary notion—that the patent incentive for medicine should be sufficient to compensate for the losses incurred when other research fails—is quietly permeating modern court decisions, commentary, and Congressional discussions, coloring debates relating to pricing and regulation of medicine. The conceptualization is moving forward unchallenged, as if failure compensation follows logically from the innovation incentives built into the patent construct. As this Article demonstrates, however, the notion is antithetical to patent law, putting modern conceptualizations on a collision course with the history and theory of patents reaching back to this nation’s inception. Reviewing patent theory, federal statutes and cases from 1790 to 1865, and the orientation of the patent system, this Article demonstrates the fallacy of creating incentives to fail. From a theoretical perspective, although patents are designed to encourage innovation, a patent is not a participation trophy. One does not receive a patent for an invention one tried and failed to create, and the patent reward is based on success, rather than failure. From an historical perspective, with limited exceptions, early patent law reveals no act or case suggesting that a patent grant is intended to compensate the patentee even for the costs of developing a successful (i.e., patented) invention, let alone other research failures. Finally, the notion of compensating for failures denies other strains evident in the patent system. Failure compensation in the context of the patent system has the effect of encouraging inefficient invention and can lead to a perverse reality in which the more one fails, the higher the compensation
The Uncertain Future of Restorative Justice: Anti-Woke Legislation, Retrenchment and Politics of the Right
No full textAs diverse forms of anti-democratic and anti-inclusionary politics escalate in the United States, public education is increasingly a site for retrenchment and contestation with targeted efforts to silence and erase civil rights victories for equity and access. Addressing a critical, yet unattended issue at the intersection of education law and policy and civil rights, this Article joins with the growing discourse interrogating the “parental rights” movement and racially regressive legislation. Employing a case study analysis of social movement activism and education policy legislation from 2018–2023 in Florida, it aims to provoke critical praxis emanating from essential inquiry— what is the future of school-based restorative justice within the expanding politics of the right and resurgence of carceral logics in public education? In posing this inquiry, this Article is guided by two core purposes. First, to amplify the increasing precariousness of educational equity and access for students who have long existed at the margins of public schools under anti-Black regimes. Second, to sound an alarm as to the expanding reality that school-based restorative justice is not only at risk, but under threat. From these vantage points, this Article joins with scholars, activists, and communities organizing for democracy and liberation in the face of a renewed ecosystem of punishment and exclusion promulgated in the name of school safety, choice, and parental rights
Three’s A Crowd: Conflicts of Interest in Third- Party Preparation of Environmental Impact Statements and Evolving Agency Responsibility Under NEPA
No full textAlthough the National Environmental Policy Act (NEPA) is designed to promote accountability and transparency about the environmental impacts of large-scale government projects, the lack of oversight over the production of Environmental Impact Statements (EIS) can result in incomplete or biased reports, especially when the EIS is prepared by a third party that has financial or organizational ties to the project. As such, this paper investigates the inherent conflicts of interest that arise when third parties prepare EIS and how that lack of impartiality can undermine the credibility of environmental assessments, erode public trust, and diminish the effectiveness of NEPA as an environmental protection tool. The paper also addresses the evolving role of agencies in overseeing the preparation of EIS and their responsibility to foster a culture of independence, objectivity, and scientific integrity in the EIS preparation process. The paper then proposes recommendations for addressing these conflicts, including revisiting the current framework for interpreting NEPA, heightening scrutiny of EIS that are prepared by potentially biased third parties, and creating more stringent oversight and accountability mechanisms by amending NEPA
