Strategic Law Avoidance Using the Internet: A Short History
Postscript (Response) by Tim Wu
90 S. Cal. L. Rev. Postscript 7 We are now some twenty years into the story of the Internet’s bold challenge to law and the legal system. In the early 2000s, Jack Goldsmith and I wrote Who Controls the Internet, a book that might be understood as a chronicle of some the early and more outlandish stages of the story. Professors Pollman and Barry’s excellent article, Regulatory Entrepreneurship, adds to and updates that story with subsequent chapters and a sophisticated analysis of the strateg...
Sex, Videos, and Insurance: How Gawker Could Have Avoided Financial Responsibility for the $140 Million Hulk Hogan Sex Tape Verdict
Postscript (Comment) by Christopher C. French
90 S. Cal. L. Rev. Postscript 1 On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a t...
"Fair, Reasonable, and Adequate" According to Who? Cy Pres Distributions That Result in Cheap Settlements and Generous Attorney Fees, but No Financial Benefit to Class Members
Postscript (Response) by Linda Sandstrom Simard
88 S. Cal. L. Rev. Postscript 55 In her recent article, Professor Rhonda Wasserman argues that class action settlements that distribute funds cy pres raise a very serious risk of prejudice to absent class members. The problem, she asserts, is the temptation for class counsel to sell out the interests of absent class members in exchange for a discounted settlement for the defendant and a generous fee for class counsel. To illustrate her concern, she cites the $9.5 million settlement in Lane v....
The New York Safe Act: A Thoughtful Approach to Gun Control, or a Politically Expedient Response to the Public's Fear of the Mentally Ill?
Postscript (Note) by Matthew Gamsin
88 S. Cal. L. Rev. Postscript 16 This Note will first review the historical development of gun-control laws in the United States, including those referred to by the Supreme Court as “longstanding prohibitions on the possession of firearms by . . . the mentally ill.” It will then analyze the extent to which the SAFE Act differs from such longstanding prohibitions and whether the Act is constitutional. Finally, this Note will consider whether, regardless of its constitutionality, the SAFE Act i...
Ring-Fencing and Its Alternatives
Postscript (Response) by David Zaring
Steven Schwarcz’s “Ring-Fencing” gets much of its impact from its broad definition of the term, which is usually heard these days when thinking about whether a multinational bank ought to be forbidden from removing the assets of its branches in one country to support its activities in another. One of the singular contributions of the article lies in its willingness to look beyond that use of the term to think about what ring-fencing means more broadly and conceptually. As Schwarcz observes, r...
Narrow Banking as a Structural Remedy for the Problem of Systemic Risk: A Comment on Professor Schwarcz’s Ring-Fencing
Postscript (Comment) by Arthur E. Wilmarth, Jr.
88 S. Cal. L. Rev. Postscript 1 In Ring-Fencing, Professor Steven Schwarcz provides an insightful overview of the concept of “ring-fencing” as a “potential regulatory solution to problems in banking, finance, public utilities, and insurance.” As Professor Schwarcz explains, “ring-fencing can best be understood as legally deconstructing a firm in order to more optimally reallocate and reduce risk.” Ring-fencing has gained particular prominence in recent years as a strategy for limiting the sys...
Running Afoul of the Non-Refoulment Principle: The [Mis]interpretation and [Mis]application of the Particularly Serious Crime Exception
Postscript (Note) by David Delgado
Envision living with the constant fear of being tortured or killed for no other reason than having a different political opinion than those in power. While that may be difficult to imagine for those who live in the United States, unfortunately, many around the world must live with that fear or flee from their homes. That fear has mobilized an estimated 11,000 to 15,000 refugees to flee from Syria. The mass exodus followed Syrian President Bashar al-Assad’s siege of the western city of Homs, wh...
Misdemeanor Injustice and the Crisis of Mass Incarceration
Postscript (Response) by Jonathan Simon
Every generation it seems, a criminal law scholar arises like an Old Testament prophet and attempts to compel their colleagues to confront the uncomfortable fact that the kind of criminal justice the overwhelming majority of their fellow citizens experience involves misdemeanor crimes, adjudicated (if you can call it that) at the lowest level of courts, with little or no lawyering, few rules, and lots of scope for nasty prejudice. For this generation, Alexandra Natapoff is that Jeremiah. For her...
Bulk Misdemeanor Justice
Postscript (Response) by Stephanos Bibas
Alexandra Natapoff’s article, Misdemeanors, shines a much-needed spotlight on the mass production of criminal justice and injustice in millions of low-level cases. For many decades, academics have dwelt ad nauseam on the biggest, sexiest criminal cases, especially capital and other serious felonies such as murder and rape. Courts and commentators have spun out elaborate accounts of the precise procedural guarantees that should govern adversarial combat between prosecutors and appointed defense c...
Our Broken Misdemeanor Justice System: Its Problems and Some Potential Solutions
Postscript (Response) by Eve Brensike Primus
Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contr...
Occupy Wall Street and Antitrust
Postscript (Response) by Maurice E. Stucke
Even its more stalwart defenders are concerned that capitalism is in crisis. Alan Greenspan conceded a “flaw” in his free-market beliefs. The Financial Times, in 2012, invited Arundhati Roy and Occupy Wall Street to share a dialogue with high-level officials and leading economists over the crisis in capitalism. The crisis in capitalism might have come as a shock to some, but not to many middle- and lower-income households. Well before 2008, middle-class Americans saw little gains in income, d...
Tarring the Trust: The Political Economy of Standard Oil
Postscript (Response) by Michael Reksulak & William F. Shughart II
It has been well established in the economics literature that the antitrust laws have been used strategically to undermine the competitive market process, whether the alleged abuses were based in fact or not. It should, then, come as no surprise that the origins of one of the most famous decisions in antitrust jurisprudence, the 1911 judgment by the Supreme Court against Standard Oil, can be traced back to an alliance of rivals that had seen their business interests hurt by John D. Rockefeller,...
Determining the Optimal Antitrust Standard: How to Think About Per Se Versus Rule of Reason
Postscript (Response) by Abraham L. Wickelgren
Andrew I. Gavil presents a thoughtful and illuminating portrait of the evolution of the rule of reason in United States antitrust law since Standard Oil. While the rule of reason, as initially embodied in Standard Oil Co. v. United States and Board of Trade of Chicago v. United States (“Chicago Board of Trade”), may have once been an invitation to make any and all arguments about the competitive nature of a given restraint, Gavil rightly points out that this is no longer the case. As currently e...
What Would Predatory Pricing Be Without John McGee? A Reply to Professor Leslie
Postscript (Response) by Joshua D. Wright
In his 2012 article, Revisiting the Revisionist History of Standard Oil, Christopher Leslie takes issue with John McGee’s work on predatory pricing and its influence on antitrust law and scholarship. Leslie claims McGee’s analysis was methodologically flawed, ideologically motivated, but ultimately successful in “distorting” predatory pricing law by persuading courts to adopt a standard too permissive of anticompetitive predation. Holding aside the specific methodological critique of McGee’s ana...
From Bombs and Bullets to Botnets and Bytes: Cyber War and the Need for a Federal Cybersecurity Agency
Postscript (Note) by Danielle Warner
In September 2010, Iranian engineers detected that a sophisticated computer worm, known as Stuxnet, had infected and damaged industrial sites across Iran, including its uranium enrichment site, Natanz. In just a few days, a sophisticated computer code was able to accomplish what six years of United Nations Security Council resolutions could not. Not a single missile was launched, nor any tanks deployed, yet the computer worm effectively set back the Islamic Republic’s nuclear program by two year...
Can Congress Make You Buy Broccoli? And Why It Really Doesn’t Matter
Postscript (Comment) by David Orentlicher
Critics of the individual mandate to purchase health care insurance make a simple but seemingly compelling argument. If the federal government can require people to buy insurance because that would be good for their health, then the government can require people to buy all sorts of things that are good for their health, like broccoli or membership in an exercise club. To avoid the prospect of the ultimate nanny state, U.S. district court judges in Florida and Virginia concluded that while the...
Of Financial Rights of Assisted Reproductive Technology Nonmarital Children and Back-Up Plans
Postscript (Response) by Dara E. Purvis
Responding to Courtney G. Joslin, Protecting Children (?): Marriage, Gender, and Assisted Reproductive Technology, 83 S. Cal. L. Rev. 1177 (2010). In her article, Courtney G. Joslin persuasively argues that the children born via assisted reproductive technology (“ART”) are placed at a serious financial disadvantage under the law. Joslin is right to point out that parentage provisions that apply only to children born to heterosexual married couples disadvantage nonmarital children of ART finan...
Interpretive Bulletin 08-1 and Economically Targeted Investing: A Missed Opportunity
Postscript (Comment) by Edward A. Zelinsky
In the waning days of the Bush administration, the Department of Labor (“DOL”) issued Interpretive Bulletin 08-1 (“IB 08-1”) concerning the legal obligations of employee benefit plan fiduciaries when they invest the plan assets they control. Specifically, IB 08-1 addresses plan fiduciaries’ duties in the context of “economically targeted investing,” the investment of plan assets in pursuit of benefits for third parties rather than for plan participants and their beneficiaries. IB 08-1 revises pr...
The Nonconstitutional Character of Ineffective Assistance of Counsel Claims in Immigration Proceedings: A Brief Comment on Afanwi v. Mukasey
Postscript (Comment) by Patrick J. Glen
On May 19, 2008, the United States Court of Appeals for the Fourth Circuit held that an alien was foreclosed from establishing that alleged ineffective assistance of counsel deprived him of his right to due process, as aliens do not possess any constitutional right to effective assistance of counsel in immigration proceedings, and thus any ineffectiveness of privately retained counsel cannot be imputed to the government for purposes of establishing a violation of the Fifth Amendment. On its face...
Arnold, Digital Media, and the Resurrection of Boyd
Postscript (Comment) by Brian M. Hoffstadt
In the fall of 2006, United States District Judge Dean D. Pregerson handed down United States v. Arnold, which held that U.S. Customs agents violated the Fourth Amendment when they searched a laptop computer belonging to an inbound international traveler at Los Angeles International Airport without any particularized suspicion. The Ninth Circuit recently overturned the district court’s ruling, but the district court’s analytical approach remains of vital interest. That is because the decision wa...
Response to Courage of Their Convictions
Postscript (Response) by Yael V. Levy
Responding to Jean Rosenbluth, Would Californians Have the Courage of Their Convictions in the Face of Fully Functioning Death Penalty?, 81 S. Cal. L. Rev. Postscript 1 (2008). I applaud Jean Rosenbluth for examining a question that has been troubling me since I relocated to California from New York last summer: would Californians support capital punishment if the State actually executed the almost 700 death eligible inmates who languish on death row for an average of eighteen years, and at l...
Would Californians Have the Courage of Their Convictions in the Face of a Fully Functioning Death Penalty?
Postscript (Response) by Jean Rosenbluth
Responding to Judge Arthur L. Alarcón, Remedies for California’s Death Row Deadlock, 80 S. Cal. L. Rev. 697 (2007). Californians overwhelmingly support the death penalty, we are told. In the most recent Field Poll, conducted in 2006, nearly two-thirds of the State’s denizens expressed support for this harshest of penalties when imposed for the most serious crimes. But I wonder if their support is something like my opposition: as lukewarm as the Chinese food I had delivered last night. Perhaps...
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