UC Law SF Scholarship Repository

Taing, Emily C.

UC Law Journal of Race and Economic Justice 
Volume 22 Number 1 Article 2 
1-2025 
Editorial Forward 
Emily C. Taing 
Follow this and additional works at: https://repository.uclawsf.edu/hastings_race_poverty_law_journal 
 Part of the Law and Race Commons 
Recommended Citation 
Emily C. Taing, Editorial Forward, 22 UC LAW SF RACE & ECON. JUST. L.J. 1 (2025). 
Available at: https://repository.uclawsf.edu/hastings_race_poverty_law_journal/vol22/iss1/2 
This Foreword is brought to you for free and open access by the Law Journals at UC Law SF Scholarship 
Repository. It has been accepted for inclusion in UC Law Journal of Race and Economic Justice by an authorized 
editor of UC Law SF Scholarship Repository. For more information, please contact wangangela@uchastings.edu. 
 
[1] 
EDITORIAL FORWARD 
We are excited to present the first issue of Volume 22 of UC Law 
Journal of Race and Economic Justice (JREJ), the culmination of diverse 
scholars, practitioners, and students dedicated to advancing the work of racial 
and economic justice. Vol. 22 No. 1 is a special issue, as we commemorate 
70 years since Brown v. Board of Education, the landmark decision declaring 
racially segreagted public schools unconstitutional. Though the ruling was 
unanimous by the Supreme Court, the goals of Brown remain under attack 
and unfulfilled.  
With each passing issue, this journal reaffirms its dedication to shedding 
light on systemic inequities, amplifying marginalized voices, and proposing 
actionable solutions to dismantle oppressive systems. Thus, for Vol. 22 No. 
we partnered with the Center for Racial and Economic Justice to co-host the 
Fall Symposium, Fine-Free Justice: Lessons From Across the Movements 
and Advancing Change Now, on November 1, 2024. We welcomed scholars, 
civil rights and education attorneys, policy advocates, community-based 
organizations, and youth leaders from across the country to discuss legal and 
policy advocacy to reduce and restrict educational fines and fees, including 
civil and criminal fines and penalties specific to school attendance, truancy, 
and conduct. The event features two engaging panels and a roundtable 
working session in which panelists and attendees explored synergies between 
advocacy between systems, examined emerging local and state-level 
interventions, and strategized for collective action at local and national levels. 
Our Vol. 22 incorporates scholarship surrounding the challenging 
instances of student ticketing across the country and the perpetuation of the 
school-to-prison pipeline by the National Center for Youth Law’s Jasmine 
Richardson-Rushin, Angelica Jimenez, Gwendolyn Walker, and Hannah 
Benton Eidsath, to how the intermingling of private enterprise and public 
education via charter schools, comes at a detrimental cost to school district 
resources, Black families, and students with disabilities by our very own Julie 
Mendoza. Additionally, the issue includes renowned legal scholars Matthew 
Coles spotlighting the shoddy misuse of Brown v. Board of Education, the 
canonical case in which the Supreme Court finally began to use the 14th 
Amendment to protect Black people, in Students for Fair Admissions v. 
Harvard, to John K. Pierre and Gail S. Stephenson exploring the history of 
de jure segregation in Maryland higher education, examines the impact of 
Brown on higher education in Maryland, and scrutinizes Maryland’s 
2 UC LAW JOURNAL OF RACE AND ECONOMIC JUSTICE Vol. 22:1 
treatment of HBCUs and its attempts to desegregate its higher education 
system after 1969.  
The mission of JREJ is to establish a dialogue on historical and 
contemporary notions of socio-political and legal challenges. Moreover, this 
issue includes Andrew Hull’s important scholarship on the racial disparities 
through restricting the scope of independent concerted actions by racially 
discriminated against union employees under Section 9 of the National Labor 
Relations Act, as well as Bill Ong Hing’s article highlighting the evolving 
viewpoints and challenges to collaboration with regards to Black migrants 
and Black Lives Matter and elevating the voices of Black migrants and 
African Americans on the issues of Black unity and racial justice 
collaboration. 
Throughout this issue, we hope you will be constantly reminded that we 
cannot give up. We hope to embrace the continual importance of prioritizing 
this discourse as a means of radical change and meaningful social progress. 
Our communities are built from our memories, our worries, and our dreams. 
Who we are may not be defined by the fragments others see or images they 
hold of us, but rather discovered through experiences and the way we choose 
to live.  
 
In Community,  
 
Emily C. Taing 
Editor-in-Chief 
UC Law San Francisco Journal of Race and Economic Justice 
2024-2025 (Vol. 22) 
 
 


Editorial Forward

https://repository.uclawsf.edu/cndr/1024/thumbnail.jp

UC Law SF Center for Negotiation and Dispute Resolution

WINTER 2025 NEWSLETTER
Message from the Director
Dear Friends and Colleagues:
I had planned to start my missive with a Happy New
Year greeting, but somehow this did not feel right
given the unprecedented devastation wrought by
the ongoing wildfires in Los Angeles. Our hearts go
out to all those affected, including our many dear
alumni, friends of CNDR and UC Law SF, and other
colleagues in the ADR field. 
The lawsuits that have already been filed are just
the tip of the iceberg: A flood of litigation in the
months ahead is inevitable, with aggregated
damages reaching into the billions. The courts will
be massively ill-equipped to handle them with the
speed and systemic coordination that will be critical
in order for all affected parties to focus on rebuilding
and moving forward. ADR will therefore once again
become indispensable, as it was for other disasters
1/21/25, 12:55 PM icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb4177…
https://www.icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb417752fa940… 1/7
such as the September 11th attacks and, as I
blogged about here, the Great Fire of London in
1666. 
The tragedy in LA is an opportunity for all of us in
the ADR community to engage at whatever level
and in whatever capacity we can. Propose dispute
systems that will resolve these disputes more
equitably and efficiently than litigation. Offer your
conflict resolution services pro bono. Influence
litigants or lawyers whom you know to choose
healing and collaboration over righteousness and
vindication. 
In the meantime, I hope you will enjoy reading some
news and notable accomplishments from the Center
for Negotiation & Dispute Resolution (CNDR) at UC
Law San Francisco (formerly UC Hastings). You
or someone you know may also be interested in one
of our upcoming trainings and events:  
Spring 2025 ADR Speakers Series
May 15, 2025: Advanced Mediation Certificate
Series: Psychology of Negotiation (with Rishi
Batra and Mattie Robertson)
July 14-18, 2025: Mastering the Fundamentals of
Mediation (with John Ford)
September 8-12, 2025: International Mediation
Development & Leadership Institute (IMDLI)
We are grateful to be part of your ADR network and
hope you will take interest in some of our
forthcoming programs. 
Hiro Aragaki
Professor of Law and Director, CNDR
Center Updates
1/21/25, 12:55 PM icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb4177…
https://www.icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb417752fa940… 2/7
Celebrating the Career and Wisdom of Hon.
Steve B. Chu (UC Law SF Class of ‘02), U.S.
Magistrate Judge
The Hon. Steve B. Chu, U.S. Magistrate Judge
for the Southern District of California, exemplifies
the values of public service, dedication, and a
lifelong commitment to learning. As a proud
graduate of the University of California College of
Law, San Francisco (formerly UC Hastings) and
the first Asian-American Magistrate Judge in the
Southern District, Judge Chu reflects on his
journey from aspiring lawyer to esteemed jurist,
offering invaluable insights for today’s law
students.
Read more
UC Law San Francisco Embarks on Multi-Year
Effort to Improve ADR Education in India
The Center for Negotiation and Dispute
Resolution (CNDR)  at the University of California
College of Law, San Francisco (formerly UC
Hastings), is making significant strides in legal
education in India. Partnering with the National
Law School of India University, Bangalore
(NLSIU)—the top law school in the country—UC
Law SF has introduced a negotiation and
mediation advocacy course tailored to the Indian
context that focuses on experiential teaching
methods. This initiative paves the way for making
alternative dispute resolution (ADR) training more
accessible in Indian law schools.
Read more
UC Law SF Partners with the JAMS
Foundation to Present Unique Training
Program for Mediation Reformers Around
the World
From September 9-13, 2024, Professor Hiro
Aragaki led a five-day training at UC Law San
Francisco (formerly UC Hastings) entitled,
Promoting Mediation through Private and Court-
Connected Mediation Centers: Lessons from the
U.S. and other Leading Mediation
Jurisdictions. The training was co-hosted by the
Center for Negotiation and Dispute Resolution
(CNDR), in collaboration with The JAMS
1/21/25, 12:55 PM icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb4177…
https://www.icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb417752fa940… 3/7
Foundation and attracted a prestigious group of
judges, lawyers, and mediators..
Read more
UC Law San Francisco at the 2024 WIP
Conference
The University of California College of Law, San
Francisco (formerly UC Hastings) and its Center
for Negotiation and Dispute Resolution (CNDR)
were well represented at the 17th Annual AALS
Alternative Dispute Resolution Works-in-Progress
Conference, held at the University of the Pacific,
McGeorge School of Law from October 18-19,
2024. The WIP Conference brings together
dispute resolution scholars, teachers, and
practitioners to discuss and receive feedback on
their scholarly ideas and projects in a welcoming
and collegial atmosphere.
Read more
Professor John Dean Awarded a 2024
Emerita Chancellor & Dean Mary Kay Kane
Award for Teaching Excellence
Longtime UC Law SF Professor John Dean
received one of only two part-time faculty awards.
The selection committee, which included
Chancellor & Dean David Faigman, had this to
say about Professor Dean:
For the past two decades, [John Dean] has been
a pillar of CNDR’s teaching community. Among
other things, he has taught hundreds of law
students how to negotiate, earning rave reviews
each semester for his ability to make the material
engaging, connect the skills he is teaching to
practice narratives, and provide clear and kind
feedback. As one student noted, Professor Dean
“is an absolute rock star!”
Read more
1/21/25, 12:55 PM icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb4177…
https://www.icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb417752fa940… 4/7
McGovern Student Scholarship for ADR
Established
Francis E. McGovern was a giant in the ADR field,
serving as both a court-appointed special master
and a mediator, and later as adjunct professor
with UC Law San Francisco. He passed away
unexpectedly in 2020, and his wife Katy
McGovern created The Francis E. McGovern
Scholarship for ADR in his honor.
The annual scholarship will support continuing UC
Law SF students committed to alternative dispute
resolution (ADR) through the Center for
Negotiation and Dispute Resolution (CNDR). As a
tribute to Professor McGovern’s passion for
teaching and resolving even the most intractable
conflicts, the scholarship is the sole beneficiary of
funds from his Foundation.
Read more
Nadiah Hadir Awarded Inaugural McGovern
Scholarship for ADR
The Scholarship was created to honor Professor
Francis McGovern and support a UC Law San
Francisco student committed to alternative dispute
resolution within the Center. A third-year student
at UC Law SF, Nadiah has taken several classes
with CNDR and participated in multiple
competitions as part of the Negotiation and
Dispute Resolution Team (ADR Team); she is an
active member of the ADR Team Board and
encourages other students to explore how dispute
resolution can impact their professional lives.
Congratulations Nadiah! CNDR is proud to be a
part of your legal journey.
Read more
1/21/25, 12:55 PM icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb4177…
https://www.icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb417752fa940… 5/7
UC Law SF Adjunct Professor Joins Marin
County Bench
On June 20, 2024, Governor Gavin Newsom
appointed long-time Adjunct Professor James
Schurz to the Marin County Superior Court. Judge
Schurz had previously practiced law for 35 years,
specializing in complex commercial and class
action civil cases.
The Center for Negotiation and Dispute
Resolution (CNDR) recently honored Judge
Schurz for his over two decades of teaching at UC
Law San Francisco (formerly UC Hastings). Judge
Schurz most recently taught International
Commercial Arbitration at the law school.
Read more
A special THANK YOU to the hard-working and
well-received Fall 2024 CNDR Adjunct Professors
Jasmine Blackmeir
Debra Bogaards
1/21/25, 12:55 PM icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb4177…
https://www.icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb417752fa940… 6/7
 Kavya Mohankumar
Joyce Winters
FOLLOW US
Questions? Contact us today at cndr@uclawsf.edu or 415-581-8941
1/21/25, 12:55 PM icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb4177…
https://www.icontact-archive.com/archive?c=272315&f=49692&s=55967&m=826636&t=7a41abb1ae31bcafd8b7a6c50b140975546bd0eb417752fa940… 7/7


Communique (Winter 2025)

Mcintyre, Skyelar

UC Law SF Journal on Gender and Justice 
Volume 36 Number 1 Article 2 
1-2025 
Foreword 
Skyelar Mcintyre 
Follow this and additional works at: https://repository.uclawsf.edu/hwlj 
Recommended Citation 
Skyelar Mcintyre, Foreword, 36 UC LAW SF GENDER & JUST. L.J. 1 (2025). 
Available at: https://repository.uclawsf.edu/hwlj/vol36/iss1/2 
This Foreword is brought to you for free and open access by the Law Journals at UC Law SF Scholarship 
Repository. It has been accepted for inclusion in UC Law SF Journal on Gender and Justice by an authorized editor 
of UC Law SF Scholarship Repository. For more information, please contact wangangela@uchastings.edu. 
UC LAW SF JOURNAL ON GENDER AND JUSTICE 1 
Foreword 
 
This edition is extremely important for our journal in light of recent 
events around the world that are contributing to the oppression of women. 
As members of UC Law SF Journal on Gender and Justice, we aim to pro-
vide a forum for voices outside the traditional scope of legal academic 
scholarship and to be advocates in the face of injustice. The two articles 
included in this publication by Emma Adams and Linny Kit Tong Ng bring 
attention to two gravely important issues today, the infringement upon re-
productive rights, and the comfort women phenomenon. We hope that these 
two articles inspire further attention to these critical issues and encourage 
more people to advocate for justice.  
Additionally, included in this publication are various pieces of art from 
four talented artists, the majority being from UC Law SF students. These 
drawings and poetry convey powerful themes of resilience and justice, 
much like the articles do. We hope these pieces serve as a visual illustration 
of the two articles for our readers and add to the experience.  
Lastly, I extend my sincerest gratitude to our entire editorial team. 
Thank you to our Executive Production Editors, Renee Applegate, Jaquel-
ine Mejia-Cuellar, and Karthik Saravanan; to our Senior Staff Editors, 
Emma Adams, Sarah Jane Catarozoli, and Quincie Cross; and our newest 
members Paola Berumen, Sarah Bodisco, Alexis Bounds, Brynn Forrester, 
Mackenzie MacLean, Alondra Martinez, Anumita Nag, Madeline Nichols, 
Maryjo Nunez, Madeline Paoli, Alexis Pena Tomasetti. Without your ded-
ication and attention to detail, Volume 36 would not be the incredible pub-
lication it is. On behalf of all members of UC Law SF Journal on Gender 
and Justice, we hope you find the following pieces of scholarship and art 
thought-provoking, compelling, and empowering, just as we do.  
 
 
Skyelar Mcintyre  
Editor-in-Chief  
UC Law SF Journal on Gender and Justice  
Volume 36 
  
2 UC LAW SF JOURNAL ON GENDER AND JUSTICE Vol. 36:1 
*** 


Foreword

Aviram, Hadar

Crim Pro Adjudicative Process

Hester, Tracy

Stat Environmental Law

Lollini, Andrea

Comparative Law

Schneider, Julian

Foundations Of Privacy Law

Koningisor, Christina

The Judges' Book 
Volume 9 Article 8 
2025 
Constitutional Law: First Amendment Disequilibrium 
Christina Koningisor 
Follow this and additional works at: https://repository.uclawsf.edu/judgesbook 
 Part of the Judges Commons 
Recommended Citation 
Koningisor, Christina (2025) "Constitutional Law: First Amendment Disequilibrium," The Judges' Book: Vol. 
9, Article 8. 
Available at: https://repository.uclawsf.edu/judgesbook/vol9/iss1/8 
This Article is brought to you for free and open access by UC Law SF Scholarship Repository. It has been accepted 
for inclusion in The Judges' Book by an authorized editor of UC Law SF Scholarship Repository. For more 
information, please contact wangangela@uchastings.edu. 
Vol. 9 The Judges’ Book 55 
 
Constitutional Law 
First Amendment Disequilibrium 
 
Christina Koningisor1 
 
In the fall of 1968, a pair of FBI agents visited New York Times 
reporter Earl Caldwell. Caldwell was the first Black reporter the 
Times assigned to cover the civil-rights movement and the only 
journalist on the scene when Martin Luther King, Jr. was shot. The 
newspaper had recently assigned him to cover the Black Panther 
movement, and the FBI agents wanted to know if Caldwell would 
pass along information about the group. He refused.2 A year and a 
half later, a federal prosecutor subpoenaed him to testify before a 
grand jury about the movement. Again, he refused, arguing that the 
First Amendment protected the identity of his confidential sources 
and his eyewitness observations of the group’s activities.3  
The ensuing legal dispute reached the Supreme Court in 1972. 
In a set of four cases consolidated under the name Branzburg v. 
Hayes, Caldwell and two other reporters argued that a qualified 
constitutional privilege protected them from being compelled to 
divulge confidential information.4 Without such protection, the 
reporters argued, their informational sources would dry up, 
impairing their ability to keep the electorate informed. The 
journalists argued that the constitutional rights of free speech and 
press contained an implicit right to gather news and information.5 
The Supreme Court rejected their arguments. In a 5-4 decision, 
the Court held that the First Amendment does not shield a reporter’s 
confidential sources from a grand-jury subpoena.6 The Court 
justified this conclusion on the ground that such a privilege was 
unnecessary: the press had flourished for 200 years without a 
privilege and had proven capable of engaging in its own self-
 
1 Excerpted and adapted from Christina Koningisor & Lyrissa Lidsky, 
First Amendment Disequilibrium, 110 VA. L. REV. 1 (2024). 
2 Josiah Bates, How a Journalist’s Refusal to Testify Against the Black 
Panthers Changed First Amendment Rights, TIME (Feb. 28, 2022).  
3 Branzburg v. Hayes, 408 U.S. 665, 675–77 (1972).  
4 Id. at 682.  
5 Id. at 694.  
6 Id. at 706.  
56 Scholarship for the Bench 2025 
 
defense.7 The Court assumed that the press possessed the economic, 
political, cultural, and social clout needed to perform its role 
effectively without judicial assistance.  
That assumption is no longer valid today. The institutional 
press has been in freefall for more than two decades. Cycles of 
layoffs have stripped talent and expertise from newsrooms, and 
wide swaths of the country now qualify as “news deserts,” without 
any local newspapers and often no local press presence at all.8 
Meanwhile, public trust in the media has declined.9 Even so, 
Branzburg’s assumptions about press power remain part of the 
foundational legal backdrop framing the relationships among the 
executive branch, the press, and the public. This Chapter 
reexamines the premises of Branzburg, other landmark cases, and 
critical legislation addressing government control of information.  
Revisiting these sources uncovers two key assumptions of the 
government-press legal regime. The first is that the institutional 
press is a powerful actor capable of asserting its professional 
interests and checking executive overreach through the courts, via 
legislation, and by appeal directly to the public in the pages of its 
own publications.10 The second is that executive officials are bound 
by various internal and external constraints on their ability to keep 
information secret.  
Judges and legislators have long assumed that the combination 
of a robust press and a constrained executive would establish a 
rough balance between the executive’s desire to keep information 
secret and the press’s desire to uncover it. Key First Amendment 
cases from this era embody this view. Alexander Bickel famously 
described it as “the disorderly situation.”11 Cass Sunstein, in turn, 
has referred to it as a “First Amendment equilibrium.”12  
 
7 Id.  
8 Penelope Muse Abernathy, News Deserts and Ghost Newspapers: Will 
Local News Survive? at 8, CTR. FOR INNOVATION & SUSTAINABILITY IN 
LOCAL MEDIA (2020).  
9 Megan Brenan, Americans’ Trust in Media Dips to Second Lowest on 
Record, GALLUP (Oct. 7, 2021). 
10 This Chapter uses the term “the executive” to refer to executive officials 
and agencies at federal, state, and local levels of government.  
11 ALEXANDER BICKEL, THE MORALITY OF CONSENT 80 (1975).  
12 Cass R. Sunstein, Government Control of Information, 74 CALIF. L. 
REV. 889, 890 (1986).  
Vol. 9 The Judges’ Book 57 
 
Yet both pillars of this constitutional equilibrium have been 
destabilized in recent years. The power and influence of the 
institutional press has dramatically declined.13 Meanwhile, the 
intra- and inter-governmental constraints on executive secrecy have 
weakened substantially.14 This combination of a hollowed-out press 
and an unchecked executive has led to a First Amendment 
disequilibrium—a development largely overlooked by the courts—
that jeopardizes the press’s ability to disseminate truthful 
information to the public. 
  
First Amendment Equilibrium 
 
The origins of the American press stretch back to the colonial 
era.15 The drafters of the Bill of Rights articulated a powerful 
conception of the role of a free press in the new nation.16 Yet for 
nearly a century after the nation’s founding, newspaper printing 
remained a small, local operation.  
In the late 1800s, the rise of yellow journalism spawned the first 
media empires, and in the early 1900s, new technologies—first 
radio, and later television—emerged as powerful news-
dissemination mediums.17 These developments transformed the 
media into a cohesive and recognizable industry with a growing set 
of shared professional norms.18 Total revenue of U.S. newspapers 
grew steadily in the following decades, from $3.6 billion in 1960 to 
$20 billion by 1980.19 Network news also began expanding.20  
The media’s growing financial power led to both increased 
political clout and a more complex and adversarial relationship with 
the government. The late 1960s and 70s also saw unprecedented 
 
13 Brenan, supra note 9.  
14 Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s 
Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2416 (2006).  
15 Sonja R. West, Favoring the Press, 106 CALIF. L. REV. 91, 109–10 
(2018).  
16 David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 
455, 533–34 (1983).  
17 Id. at 447. 
18 Id. at 448.  
19 Newspaper Fact Sheet, PEW RES. CTR. (June 29, 2021). 
20 Marc Gunther, The Transformation of Network News, NIEMAN REP. 
(1999). 
58 Scholarship for the Bench 2025 
 
investigative efforts,21 including deep and sustained reporting on 
the failures and horrors of the Vietnam War.22 These efforts 
coincided with a rise in public confidence in the press: a Gallup poll 
from the mid-1970s found that 72% of Americans trusted the mass 
media.23 
During this same period, the federal government’s power and 
reputation were waning. A series of scandals and policy failures 
throughout the 1950s, 60s and 70s—including the failures of 
Vietnam, the Watergate investigation, and the civil-rights abuses 
committed by the FBI under J. Edgar Hoover—culminated in 
increased pressure to curtail executive secrecy and impose new 
constraints against governmental overreach and abuse.24  
That pressure led to various legislative efforts to peel back 
excessive secrecy and allow the public increased access to 
information held by the government. The Freedom of Information 
Act (FOIA), enacted in 1966, provided the public with a private 
right of access to federal agency records, and amendments to FOIA 
passed in the wake of Watergate allowed for more robust judicial 
oversight of agencies’ classification authority.25 Importantly, FOIA 
was designed with the press in mind.26 As one member of Congress 
explained, “It will take vigorous action by the . . . Nation’s press to 
make our objectives [in passing FOIA] a reality.”27 State and local 
governments passed similar disclosure reforms.28  
 
21 Time magazine declared 1974 “The Year of the Muckrake.” JAMES L. 
AUCOIN, THE EVOLUTION OF INVESTIGATIVE JOURNALISM 119 (2005).  
22 RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and 
Legal Protection in the Changing World of American Journalism, 84 
WASH. L. REV. 317, 318 (2009).  
23 Brenan, supra note 9.  
24 William C. Banks & M.E. Bowman, Executive Authority for National 
Security Surveillance, 50 AM. U. L. REV. 1, 31–35 (2000); Matthew C. 
Waxman, National Security Federalism in the Age of Terror, 64 STAN. L. 
REV. 289, 298–301 (2012).  
25 The Freedom of Information Act, 5 U.S.C. §§ 552 et al. 
26 Margaret B. Kwoka, FOIA, Inc., 65 DUKE L.J. 1361, 1371 (2016) 
(describing FOIA’s drafters’ belief that the press would be the primary 
users of the law).  
27 112 Cong. Rec. 13,655 (1966) (statement of Rep. Hall).  
28 Years that State FOIA Laws Were Enacted, BALLOTPEDIA, 
https://ballotpedia.org/Years_that_state_FOIA_laws_were_enacted.  
Vol. 9 The Judges’ Book 59 
 
Meanwhile, Congress established permanent intelligence-
oversight committees29 and passed the Foreign Intelligence 
Surveillance Act, which imposed new procedural constraints on the 
ability of intelligence agencies to conduct domestic surveillance.30 
The executive adopted voluntary intra-branch reforms, such as 
internal inspectors general for national-security agencies.31 And 
state and local governments followed suit.32 Such reforms had the 
dual effects of constraining federal, state, and local executive 
agencies and of pushing additional information into the public 
sphere.  
The result of these developments was a powerful press capable 
of advancing its own institutional interests when pitted against a 
newly constrained executive branch. This established a rough 
equilibrium between press and government, and the Court relied on 
this equilibrium in three important information-access cases during 
the 1970s. 
First, in New York Times v. Sullivan, the Supreme Court 
famously rejected the executive’s efforts to halt newspapers’ 
publication of the Pentagon Papers.33 Instead of deciding what 
national-security information should be protected, the Court set up 
a content-neutral battle of the wills in which the executive has 
sweeping authority to keep national-security information secret but 
little authority to prevent the press from publishing information it 
obtains.34 The assumption underlying this regime is that the press 
and the government are evenly matched when competing over 
information. 
Second, in Branzburg, the Court rejected the press’s efforts to 
obtain a qualified testimonial privilege for journalists’ sources and 
unpublished information.35 In doing so, the Court again relied upon 
 
29 See generally Congressional Oversight of Intelligence: Background and 
Selected Options for Further Reform, CONG. RES. SERV., R45421 (Dec. 4. 
2018). 
30 Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, §§ 
102–03, 92 Stat. 1783, 1786–88.  
31 Shirin Sinnar, Protecting Rights from Within? Inspectors General and 
National Security Oversight, 65 STAN. L. REV. 1027, 1055–57 (2013).  
32 Waxman, supra note 24, at 300–01.  
33 403 U.S. 713 (1971).  
34 Id.  
35 Branzburg v. Hayes, 408 U.S. 665, 708–09 (1972). 
60 Scholarship for the Bench 2025 
 
the assumption that journalists didn’t need the judicial branch to 
step in because it had “powerful mechanisms of communication” 
to “protect itself.”36  
Third, in Houchins v. KQED,37 the Court denied the press’s 
claim to a First Amendment right to access prison facilities. The 
Court emphasized that journalists had other channels of 
information at their disposal.38 The Court’s underlying assumption 
was that the press had sufficient resources, time, and popular 
support to engage in these often protracted, costly, and uncertain 
investigative processes.  
In sum, the major foundations of the law governing relations 
between the press and the government were built on top of two key 
assumptions: that the press was powerful enough to advocate for its 
own interests, and that the executive’s power over information was 
constrained.  
 
First Amendment Disequilibrium 
 
In the decades since these foundational precedents were 
established, both assumptions have weakened. On one side, the 
institutional press is in a present state of crisis. The rise of the 
Internet in the late 1990s and early 2000s disrupted media outlets’ 
longtime financial model, and both advertising revenue and 
subscription revenue has plummeted, especially for local and 
regional print outlets.39 Between 2004 and 2020, roughly a quarter 
of all print newspapers in the country closed.40 Further, the public 
has lost confidence in the institutional press.41 Public trust in the 
media fell from 72% in 1972 to 32% in 2016.42 
 
36 Id. at 706.  
37 Houchins v. KQED, 438 U.S. 1 (1978).  
38 Id. at 6, 14–15.  
39 MARTHA MINOW, SAVING THE NEWS 10–35 (2021).  
40 Whitney Joiner & Alexa McMahon, Since 2005, About 2,200 Local 
Newspapers Across America Have Closed. Here are Some of the Stories 
in Danger of Being Lost — As Told by Local Journalists, WASH. POST 
(Nov. 30, 2021). 
41 See generally Louis Menand, When Americans Lost Faith in the News, 
NEW YORKER (Jan. 30, 2023). 
42 Brenan, supra note 9. 
Vol. 9 The Judges’ Book 61 
 
On the other side, many of the checks that once constrained 
executive power have frayed. Congressional oversight of the 
national-security agencies has proven ineffective.43 Presidential 
power has expanded.44 And the federal courts have failed to 
meaningfully check executive secrecy. The Federal Intelligence 
Surveillance Court, operating behind closed doors, approves nearly 
all the warrant applications it receives,45 and the lower federal 
courts have crafted a series of FOIA-specific doctrines that 
undermine requesters’ capacity to unearth national-security and 
law-enforcement secrets.46 Meanwhile, state and local executive 
powers have likewise expanded.47  
This simultaneous decline of both the institutional press and 
executive restraints has destabilized the legal regime that governs 
the public’s access to information. The fraying of 
intergovernmental oversight mechanisms means the executive’s 
secrecy powers have expanded. An emboldened and unfettered 
executive now has vast resources for obtaining information and 
keeping it secret. Meanwhile, the decline of national and regional 
outlets and reduced capacity of media institutions mean fewer 
reports on governmental abuse and overreach, especially in hard-
to-access facilities like prisons.48 And the press is no longer well 
equipped financially, politically, or culturally to engage in the same 
self-help mechanisms it has long used to protect against an 
overbearing government, such as by taking the government to court 
to vindicate the right of information access.49 Government power 
has expanded; the press has weakened. The equilibrium 
assumptions of Branzburg are no longer valid. 
 
 
43 Glenn Sulmasy, Executive Power: The Last Thirty Years, 30 U. PA. J. 
INT’L L. 1355, 1355 (2008).  
44 Katyal, supra note 14, at 2321.  
45 A.C.L.U. v. United States, 142 S. Ct. 22 (2021).  
46 Margaret B. Kwoka, Deferring to Secrecy, 54 B.C. L. REV. 185, 212–
16, 224–28 (2013).  
47 Miriam Seifter, Gubernatorial Administration, 131 HARV. L. REV. 483, 
485–89 (2017).  
48 See generally Abernathy, supra note 8. 
49 See Christina Koningisor, Transparency Deserts, 114 NW. U. L. REV. 
1461, 1521 (2020) (noting that half of the exemptions in West Virginia’s 
public records law have never been interpreted by a state judge). 
62 Scholarship for the Bench 2025 
 
Fixing the First Amendment Disequilibrium 
 
Reinvigorating controls on executive power could help restore 
the equilibrium, but executive power today is so ascendant that such 
controls would confront significant political obstacles. 
Reinvigorating the power of the press as a worthy adversary offers 
another route. 
One way to help empower the press is to ramp up its legal 
protections. The Court could, in theory, revisit Branzburg and 
recognize a qualified First Amendment shield for journalists’ 
sources.50 It could also extend the First Amendment right of access 
to reach other types and forms of government activity, including 
executive-branch records, information, and facilities.51 Legislative 
interventions could help as well. Congress could enact a statutory 
shield law, for instance.52 The benefit of a legislative approach is 
that Congress could resolve difficult definitional questions around 
who qualifies for protection.53  
Another way is to improve the economic, political, and cultural 
position of the press—especially the local press. Such possibilities 
could include a more robust nonprofit model, similar to what 
institutions like ProPublica or the Marshall Project have 
achieved.54 For example, the VTDigger, based in Montpelier, has 
proven successful in plugging the holes opened up by the decline 
of legacy newspapers like the Burlington Free Press.55 Other 
creative funding models, such as local newspaper cooperatives or 
 
50 Christina Koningisor, The De Facto Reporter’s Privilege, 127 YALE 
L.J. 1176, 1264–66 (2018).  
51 Christopher Dunn, Column: Rediscovering the First Amendment Right 
of Access (New York Law Journal), NYCLU (Aug. 4, 2011).  
52 RonNell Andersen Jones, Avalanche or Undue Alarm? An Empirical 
Study of Subpoenas Received by the News Media, 93 MINN. L. REV. 585, 
596 (2008).  
53 Sonja R. West, Awakening the Press Clause, 58 UCLA L. REV. 1025, 
1062–70 (2011).  
54 See, e.g., ProPublica Local Reporting Effort, 
https://www.propublica.org/local-reporting-network/.  
55 Bill McKibben, How Vermont’s Media Helps Keep the State Together, 
NEW YORKER (Sept. 14, 2022). 
Vol. 9 The Judges’ Book 63 
 
media institutions organized as public-benefit corporations, could 
also help stem the losses in local news.56  
Ultimately, it is unlikely that any single approach will cure the 
press and restore the government-press equilibrium. But some mix 
of the remedies outlined above might reduce the current imbalance 
and mitigate the distortions in the law created by the collapse of the 
press. Such an effort is crucially important in the effort to combat 
misinformation and restore balance to the information ecosystem 
that sustains the democratic process. 
 
* * * 
  
 
56 For a summary of some of these new funding models, see Mark Glaser, 
5 Business Model Shifts for Local News in 2021 and Beyond, KNIGHT 
FOUND. (Dec. 18, 2020). 


Constitutional Law: First Amendment Disequilibrium

UC Law SF

UC Law SF 
UC Law SF Scholarship Repository 
2025 Board of Directors Agenda and Materials Board of Directors Agenda and Materials 
5-12-2025 
Meeting of the Executive Committee - Notice and Agenda 05/12/
2025 
UC Law SF 
Follow this and additional works at: https://repository.uclawsf.edu/board_materials_2025 
 
 
 
MEETING NOTICE AND AGENDA 
 
The Executive Committee of the Board of Directors of University of California College of the Law, San 
Francisco will hold a meeting as set forth below.  
 
EVENT:  Meeting of the University of California 
   College of the Law, San Francisco Board of Directors    
   Executive Committee  
 
DATE:   Monday, May 12, 2025  
 
STARTING TIME: 9 a.m. 
 
PLACE:        University of California College of the Law, San Francisco  
        198 McAllister St. Room 206  
        San Francisco, CA 94102 
 
      Members of the public may also join the meeting via the web link or dial-in 
numbers provided below.   
 
Join Zoom Meeting 
https://uchastings.zoom.us/j/95140974096  
 
Meeting ID: 951 4097 4096 
One tap mobile (US) 
+12133388477,,95140974096#  
+12063379723,,95140974096#  
 
Dial by your location 
 
        +1 669 900 6833 US (San Jose) 
        +1 213 338 8477 US (Los Angeles) 
        +1 669 219 2599 US (San Jose) 
Meeting ID: 951 4097 4096 
Find your local number: https://uchastings.zoom.us/u/ad366sO7BU 
 
Join by SIP 
95140974096@zoomcrc.com 
 
Join by H.323 
162.255.37.11 (US West) 
162.255.36.11 (US East) 
 
 
 
 
 
 
Agenda:  
 
1. Roll Call 
 
Director Albert Zecher, Chair 
Director Courtney Greene Power, Vice Chair  
Director Shashi Deb 
Director Andrew Houston  
Director Chip Robertson 
 
2. Public Comment Period 
This is an opportunity for members of the public to comment on agenda items. Public comment on any 
agenda item will be limited to no more than two minutes per speaker and 30 minutes total. Groups or 
organizations that wish to comment on a particular item are encouraged to have a single representative 
speak for no more than two minutes. These limits can be varied at the discretion of the Chair. Persons 
who wish to speak on matters not on the agenda should make their request in writing to the General 
Counsel and Secretary of the College. 
 
*3. Approval of Prior Meeting Minutes 
Approval of Minutes from April 28, 2025 
 
4. Student Success Strategies 
 
5. Update on Federal Historic Tax Credits and Requisite Financing Structures (Information) 
 
6. State Budget Update for 2025-26 
  
The Committee will enter closed session pursuant to Education Code Section 92032(b)(5),(6)&(7). Only 
Board members and authorized participants are permitted to attend. 
 
*7. Approval of Prior Meeting Minutes 
Approval of Minutes from February 10, 2025 
Approval of Minutes from April 28, 2025 
 
8. Moss Adams Cyber Audit – Update 
 
9. Legal Updates 
a. AFSCME 
b. AFT 
c. UAW – Student Union  
d. Sidewalks Litigation  
e. Name Change Litigation 
f. Federal Matters 
 
10. Campus Expansion  
 
The Committee will return to open session. 
 
11. Adjournment 
 
 
The Board and its committees reserve the right to take action, or not, on any item on the agenda. 
 
 
This notice and agenda are available at the following University of California College of the Law, San 
Francisco website address: https://uclawsf.edu/our-story/board-of-directors/board-meeting-notices-
agendas-and-materials/  
--------------------------------------------------------------------------------------------------------------------- 
 
For further information, please contact John K. DiPaolo, Secretary of the College, 200 McAllister Street, 
San Francisco, CA 94102, (415) 565-4850 or OGC@uclawsf.edu . You are encouraged to inform Mr. 
DiPaolo in at least one day in advance of the meeting of your intent to speak during the public comment 
period, which will assist the Board in maximizing the opportunity for public comment.  
 
The University of California College of the Law, San Francisco complies with the Americans with 
Disabilities Act. Please contact the Secretary’s Office in advance of the meeting for accommodations. 


Meeting of the Executive Committee - Notice and Agenda 05/12/2025

UC Law SF 
UC Law SF Scholarship Repository 
2025 Board of Directors Agenda and Materials Board of Directors Agenda and Materials 
5-22-2025 
Educational Policy Committee Meeting – Notice and Agenda 05/
22/2025 
UC Law SF 
Follow this and additional works at: https://repository.uclawsf.edu/board_materials_2025 
 
 
 
 
 
MEETING NOTICE AND AGENDA 
 
 
The Educational Policy Committee of the University of California College of the Law, San Francisco will 
hold a meeting as set forth below.  
 
EVENT:  Meeting of the University of California 
   College of the Law, San Francisco Board of Directors    
   Educational Policy Committee  
 
DATE:   Thursday, May 22, 2025 
 
STARTING TIME: 12:30 p.m. 
 
PLACE:       University of California College of the Law, San Francisco  
        333 Golden Gate Ave., Suite 501 Deb Colloquium Room 
          San Francisco, CA 94102 
 
   Members of the public may also join the meeting via the web link or dial-in 
numbers provided below.   
 
Join Zoom Meeting 
https://uchastings.zoom.us/j/95140974096  
 
Meeting ID: 951 4097 4096 
One tap mobile (US) 
+12133388477,,95140974096#  
+12063379723,,95140974096#  
 
Dial by your location 
 
        +1 669 900 6833 US (San Jose) 
        +1 213 338 8477 US (Los Angeles) 
        +1 669 219 2599 US (San Jose) 
Meeting ID: 951 4097 4096 
Find your local number: https://uchastings.zoom.us/u/ad366sO7BU 
 
Join by SIP 
95140974096@zoomcrc.com 
 
Join by H.323 
162.255.37.11 (US West) 
162.255.36.11 (US East) 
 
 
 
Agenda:  
 
1. Roll Call 
Director Andrew Houston, Chair 
Director Simona Agnolucci 
Director Shashi Deb 
Director Claes Lewenhaupt 
Director Chip Robertson 
Director Albert Zecher 
 
2. Public Comment Period 
This is an opportunity for members of the public to comment on agenda items. Public comment on any 
agenda item will be limited to no more than two minutes per speaker and 30 minutes total. Groups or 
organizations that wish to comment on a particular item are encouraged to have a single representative 
speak for no more than two minutes. These limits can be varied at the discretion of the Chair. Persons 
who wish to speak on matters not on the agenda should make their request in writing to the General 
Counsel and Secretary of the College. 
 
*3. Approval of Prior Meeting Minutes 
Approval of Minutes from February 27, 2025 
 
4. Report of Provost and Academic Dean Morris Ratner 
4.1 Strategic Plan Implementation: Year-End Report 
4.2 Student Success Initiatives – Academic Policy Changes 
4.3 Bar Success 
4.4 Employment 
4.5 Faculty Scholarship 
4.6 Artificial Intelligence 
4.7 Ranking 
4.8 New College Policies 
 
The Board will adjourn to closed session pursuant to Education Code Section 92032(b)(7). Only Board 
members and authorized participants are permitted to attend. 
 
5. Faculty Personnel Matters 
 
The Board will return to open session. 
 
6. Adjournment 
 
*Denotes Action Item 
 
The Board and its committees reserve the right to take action, or not, on any item on the agenda. 
 
This notice and agenda are available at the following University of California College of the Law, San 
Francisco website address: https://uclawsf.edu/our-story/board-of-directors/board-meeting-notices-
agendas-and-materials/  
--------------------------------------------------------------------------------------------------------------------- 
 
For further information, please contact John K. DiPaolo, Secretary of the College, 200 McAllister Street, 
San Francisco, CA 94102, (415) 565-4850 or OGC@uclawsf.edu . You are encouraged to inform Mr. 
 
DiPaolo in at least one day in advance of the meeting of your intent to speak during the public comment 
period, which will assist the Board in maximizing the opportunity for public comment.  
 
The University of California College of the Law, San Francisco complies with the Americans with 
Disabilities Act. Please contact the Secretary’s Office in advance of the meeting for accommodations.  


Not a member yet