University of California Hastings College of the Law
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Racialization of Street Vendors: the Criminalization of Ethnic Minority Workers in California
No full textCalifornia Environmental Flows Framework: The Ways Good Science Gets Watered Down
No full textIn the field of natural resources policy, there is a longstanding tendency for good science to get compromised and diluted when it comes to final agency actions and policies. In the water policy arena, this tendency has been particularly prevalent when it comes to agency-mandated instream flow standards, which often depart from agency determinations of what instream flow is needed to maintain healthy fisheries and ecosystems. In late 2021, the California Water Quality Monitoring Council approved the California Environmental Flows Framework (“CEFF”). The CEFF makes a distinction between “ecological flow criteria” and “environmental flow recommendations” and anticipates that CEFF “environmental flow recommendations” may depart from CEFF “ecological flow criteria” to accommodate consumptive uses of water. This article evaluates the extent to which the CEFF methodology may both support and hinder efforts to ensure there is instream flow to support healthy fisheries and ecosystems
How Crisis Affects Crypto: Coronavirus as a Test Case
No full textEverybody is talking about cryptocurrencies. These digital tokens, which started in a one-asset market, have swiftly ballooned into a massive and diverse “cryptomarket.” The cryptomarket is still mostly unregulated, but this is about to change. With President Biden’s adoption of the Executive Order on Ensuring Responsible Development of Digital Assets, regulatory initiatives are being adopted abroad, and global regulation looms ahead. In light of the expected regulatory changes, two important questions emerge: is there a clear rationale for legal intervention in the cryptomarket? And if so, what type of regulation is optimal?
This Article is the first to consider how to regulate the cryptomarket through an empirical analysis of how the COVID-19 crisis affected the cryptomarket. We take a two-step approach to answer these pivotal questions. First, we analyze empirical evidence from the early days of the COVID-19 pandemic to better understand the risks posed by the cryptomarket when a crisis emerges. Second, we apply a law-and-economics approach to identify which market failures are consistent with the data and derive novel regulatory lessons. Our empirical analysis reveals an interesting pattern: investors initially shifted funds to the cryptomarket when the pandemic erupted, but then made a U-turn and diverted funds out of cryptocurrencies, leading to a plunge in the market. We maintain that such investor behavior can have both rational and behavioral explanations, which in turn affects the optimal choice of regulation.
Accordingly, we map each rational and behavioral explanation onto potential market failures by surveying different possible interpretations of our findings, such as substitution effects between traditional markets and the cryptomarket, exploitation of investors in the form of pumpand- dump schemes, and other criminal activities. We then discuss how each type of failure can serve as justification for regulation and derive regulatory lessons on how to best intervene in the cryptomarket depending on the source of the market failure
Immigration Law’s Boundary Problem: Determining the Scope of Executive Discretion
No full textIn immigration law, executive discretion has become contested terrain. Courts, officials, and scholars have rarely distinguished between regulatory discretion, which facilitates exclusion and removal of noncitizens, and protective discretion, which safeguards noncitizens’ reliance interests. Moreover, courts have long discerned an internal-external divide in discretion, deferring to executive measures that exclude noncitizens abroad, while reducing deference for measures concerning noncitizens who have already entered the United States. Immigration law needs a cohesive framework for executive discretion. This Article suggests a stewardship model to fill that gap.
Recent developments have emphasized the need for a coherent model of discretion. The Trump Administration altered the landscape of executive discretion, seizing every chance to make the law harsher. The Biden Administration’s efforts to correct this imbalance have been only partially successful. For example, the Biden Administration has issued a final rule supporting the Deferred Action for Childhood Arrivals (DACA) program and has issued enforcement guidelines that prioritize threats to national security and public safety and address recent irregular entries at the border. The Biden Administration has also sought to end the Trump Administration’s “Remain in Mexico” program, which subjects tens of thousands of asylum seekers to peril. However, for over a year, President Biden retained the Title 42 program, which precluded asylum in the name of preventing the introduction of COVID-19. That program undercuts asylum and does not perform its ostensible public health mission. Only an unfavorable court decision in 2022 spurred efforts to terminate Title 42. At that point, another court enjoined Title 42’s termination, illustrating yet again the confused state of executive discretion.
A workable approach to executive discretion requires returning to first principles. To achieve these goals, the stewardship model highlights three factors: fit with the statutory framework, protection of reliance interests, and avoidance of adverse impacts on foreign relations. This Article applies these values to DACA, the Biden enforcement guidelines, Title 42, and the Remain in Mexico program
Pole Cameras: Applying Fourth Amendment Protections to Emerging Surveillance Technology
No full textEvolving surveillance technologies present unique challenges for the judiciary to maintain robust Fourth Amendment privacy protections. New surveillance tools such as pole cameras raise significant questions regarding the current scope of the Fourth Amendment and the steps the Supreme Court must take to prevent the erosion of a foundational constitutional right.
This Note lays out the current debate among scholars and courts regarding the impact of the Supreme Court’s decision in Carpenter v. United States. It demonstrates the challenge that new technology presents by providing an overview of the split between state and federal circuit courts in applying Carpenter to warrantless pole camera surveillance. The Note provides a detailed analysis of the legal reasoning of both perspectives, with a particular focus on the overlapping considerations that courts have focused on in their decisionmaking. Finally, this Note offers a new framework, adapting the Katz v. United States test by utilizing these overlapping considerations, to ensure that Fourth Amendment privacy protections remain stanch against the advancement of surveillance technology
