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GROUND RULES: GIVING MEANING AND EFFECT TO KEY CONTESTED TERMS IN THE CALIFORNIA RACIAL JUSTICE ACT
Full text linkThe California Racial Justice Act (RJA), which applies to all pretrial, trial, and post-conviction defendants,
prohibits any state actor from relying upon racial bias to seek or obtain a conviction or sentence against a defendant. In a state where racial disparities in incarceration have been growing for decades, the law, which became retroactive in 2024, has the power to create a sea of change across California criminal institutions. Using the power of state constitutional law and relying upon the principles of comity and federalism, the California Racial Justice Act explicitly rejects the intent-to-discriminate standard set by the U.S. Supreme Court in McCleskey v. Kemp. In its place is a novel two-branched framework to challenge racism either by evidence of bias by system actors, or by demonstrating county-wide racial disparities. Together, these two approaches have the potential to create broad relief from the racial inequality that has long plagued the criminal justice system and eluded other reform efforts.
Despite its broad legislative vision, the practical and actual reach of the RJA remains an open question. Thus far, successful claims brought under the RJA—including challenges to the use of rap lyrics in gang cases, and racially biased language used by judges, prosecutors and police—have mostly resulted from evidentiary presentations about specific acts of bias by system actors. Despite the limited litigation focused on system-wide racial disparity, there is already substantial confusion and disagreement about the meaning and nature of key statutory terms — specifically the meaning of ‘similar conduct’ and ‘similarly situated,’ comparisons in the statistical measurement and evaluation of ‘disparity,’ how the relationship between racial bias and case impact is defined, and what constitutes a ‘race neutral’ explanation.
In the end, the courts’ interpretation, and thus the ultimate impact of the RJA, will be molded by the ability of defendants to demonstrate systematic disparity in a manner that is both scientifically sound and legally valid. For the RJA to rise to its expansive legislative vision, it will require factual findings and legal conclusions about what constitutes a valid and reliable scientific methodology to quantify racial disparity in crime and punishment.
Fortunately, in this, California courts are not alone. Amassing and explaining evidence presented in support of these claims is well within the expertise of statisticians, social scientists, and methodologists. The already conflicting court opinions on the RJA pose questions that can find their answers in statistical and scientific thought, debate, and review that has been established over nearly 100 years. This Article proposes an approach to the interpretations of RJA comparison for ‘similar conduct’ and ‘similarly situated’ cases based on those answers. Additionally, we lay out a related 5-point test on the meaning of ‘race-neutral’ explanation. Our goal is to standardize and streamline RJA litigation while establishing a rigorous and reasonable evidentiary standard that does not unduly burden the prosecution, the defense, or the judiciary
CHILDREN’S PRIVACY IN XR APPLICATIONS – A RIGHTS-BASED APPROACH
Full text linkIn the extended reality (XR) of Metaverse applications, several innovative technologies converge and interconnect to blur the lines between the digital and physical worlds. The seamless operation of XR applications requires the collection and processing of huge quantities of data, including personal data, to give users a truly immersive virtual experience. One of the major intended user groups of the Metaverse are children, who increasingly use XR spaces to learn, play, create content, and engage in a wide range of other activities. This article considers the challenges to safeguarding children’s privacy in this evolving digital landscape and makes recommendations for a rights- based approach to protecting children’s personal information.
The article first maps the types of personal data that are collected in the Metaverse. It then identifies privacy risks in the Metaverse and discusses what legal and non-legal mechanisms exist to mitigate these risks. This is followed by a discussion of why children need special protection of their privacy and how a child rights’ approach to privacy protection would operate. Children’s privacy requires special attention not only because they are projected to be one of the main audiences of the Metaverse but also because young users are particularly vulnerable to harm arising from inappropriate use of their personal information. In discussing a child rights’ approach, a particular focus is on codes for age-appropriate design that are emerging in an increasing number of jurisdictions. After considering possible modes of implementing regulation and acknowledging the difficulties of enforcing data rights in the Metaverse, the article makes specific recommendations for the protection of children’s data in XR space
CONSERVATIVE FAMILY VALUES AS CONSTITUTIONAL LAW: PRIVATE REGULATION AND THE EROSION OF FUNDAMENTAL RIGHTS
No full textThis Article examines a paradox in contemporary constitutional law: While constitutional rights traditionally protect minorities against majority preferences, the Supreme Court has increasingly enabled certain private actors to override others’ constitutionally protected family formation choices through what this Article calls “private regulation.” The Court’s decisions allow individual private actors to impose traditional religious and moral views on others who do not share those beliefs, while simultaneously embedding those very views in constitutional jurisprudence. This dual approach creates a troubling inversion. Instead of constitutional rights serving their traditional function of protecting minorities from majority overreach, they are being used to empower some private actors to restrict the rights of others.
Through an examination of abortion jurisprudence culminating in Dobbs v. Jackson Women’s Health Organization, the Article demonstrates how the Supreme Court’s expanding accommodation of private religious and moral objections systematically eroded and ultimately helped nullify the constitutional right to abortion. The Court’s approach to these objections increasingly privileged certain traditional views of family formation while limiting protections for alternative family structures and reproductive choices. The Court’s endorsement of religious exemptions, vigilante enforcement mechanisms (a statutory scheme that delegates enforcement of state law primarily or exclusively to private citizens through civil litigation, rather than to state officials through traditional public enforcement), and sites of private manipulation like anti-abortion centers transformed personal religious convictions into de facto law, ultimately paving the way for Dobbs.
This pattern of private regulation is now being deployed against LGBTQ+ rights, particularly targeting same-sex marriage and family formation. Through parallel mechanisms of religious refusals, vigilante laws, and private coercion, conservative actors seek to hollow out Obergefell v. Hodges just as they did Roe v. Wade.
These “private regulation” efforts in the reproductive rights and LGBTQ+ spheres converge in restrictions on assisted reproductive technology, which disproportionately impact LGBTQ+ couples and single persons—those who deviate from an idealized nuclear family model. By stunting substantive due process doctrine, Dobbs impeded the ability to assert fundamental rights to procreation and family formation against both private and public regulation.
The Article argues that the Supreme Court’s deference to private regulation allows a minority to impose its normative vision of family and gender roles onto the broader public, undermining democratic values and constitutionally protected freedoms. However, the Article identifies potential opportunities for resistance, particularly through state-level equal protection arguments and democratic mobilization around assisted reproductive technology access. The analysis provides crucial insights for preserving constitutional rights against this assault by judicial and private actors on non-traditional family formation
ESG IN SPACE: CREATING AN EFFECTIVE SPACE GOVERNANCE SYSTEM BY USING TERRESTRIAL ESG PRINCIPLES TO PROPERLY REGULATE PRIVATE SPACE ACTORS
No full textAs the privatization of space accelerates, concerns arise about the potential for unregulated exploitation of celestial resources by private companies. From setting up extraterrestrial colonies to exploiting asteroids, private space companies have long aimed to tap into the riches of the cosmos. Our current legal framework is not prepared for the huge influx of new private space actors, all while new regulation has trailed the fast-paced space industry and its advances. For an effective space governance system to be created, a new regulatory framework that helps regulate private space actors must be created.
This Note argues for the application of Environmental, Social, and Governance (ESG) principles to establish a sustainable and responsible framework for space governance. It begins with a historical overview of the space industry’s shift from government-led to commercially driven exploration, highlighting the inadequacies of existing space law in addressing the unique challenges posed by private actors. Through a critical analysis of current legal frameworks and international agreements, this Note examines the risks of corporate-driven space colonization and resource extraction. Drawing parallels to terrestrial industries, this Note explores how ESG protocols, regulatory sandboxes, and lessons from deep-sea mining regulation can be adapted to ensure that private space activities benefit all of humanity. Finally, it proposes actionable steps for integrating ESG principles into space law to safeguard the global commons of outer space
A PROGRAM TO IMPROVE THE EFFICIENCY AND QUALITY OF PATENT EXAMINATION
No full textIn this article we suggest three novel amendments to U.S. patent law to increase efficiency and decrease costs. We first contend that while the assertion of invalid patents is detrimental because of anticompetitive effects, such competition concerns should place no duty upon applicants to disclose prior art at the outset. Additionally, we argue that to avoid resource waste, the USPTO should outsource prior art searches for certain applications, as in Japan. Finally, we propose a system where patentees have the option to elect to a patent box regime that reduces their taxes on patent profits substantially (e.g., from 21% to 5%), but requires patentees to pay the USPTO a modest percentage (e.g., 2% ) of their profits annually, in lieu of flat periodic maintenance fees. Implementing these changes, or suitable alternatives based on the underlying principles of these changes, will help the USPTO issue deserving inventors more durable patent rights to compete in the global market
