UC Irvine Law Review

Central to prison reform is the idea that prisons can be humane. Abolitionist scholarship has raised one challenge to this idea, in the form of a structural critique. Prisons, on this account, are social institutions that reflect and reinforce inequality; reform does not disturb those broader injustices, and so cannot cure the problems with prisons. Yes, and prison reform has another problem: there are limits to how humane any prison can be. Prisons are, by definition, instruments of punishment that inflict extreme isolation and control, which are dehumanizing experiences. And reforming prisons is, in some ways, an aesthetic project that is more concerned with the sensibilities of the punishers than the experience of the punished. I develop this argument using Norwegian prisons as a case study—prisons that reformists consider models of humane punishment, but which I describe differently through interviews with people incarcerated there. Part I of this Article situates my argument in abolitionist scholarship. Part II develops a critique of prisons and reform using Norwegian prisons as a case study. Part III mobilizes this critique of prison reform to offer a new account of some limits to prison conditions law. And Part IV suggests a kind of prescription: enforcing the perspective of the punished, rather than the punisher.

The substantial similarity test is copyright law’s dominant means by which courts determine whether a party has infringed another party’s copyright rights. Despite this, we have very little empirical evidence about what the test is and how courts apply it. To date, only a few empirical studies exist, and these are limited in several important ways, including with regards to scope, time periods covered, and volume of opinions. Mostly, courts, commentators, and scholars rely on anecdotal accounts of the test in both their conceptualizations and critiques of it.

To help provide a clearer empirical assessment of the test, this study examines a random sample of over 1,000 substantial similarity opinions issued between 1978 and 2020. This study covers opinions from district and appellate courts in every circuit and tracks a number of these opinions’ characteristics. These characteristics include: the subject matter and copyright rights in dispute; procedural posture; opinion date; the subtests, expert evidence, and copyright limitations used in the opinion; the sources of authority that courts rely on in their opinions; and outcomes for each part of the test and the case overall.

This review reveals a number of important findings. First, similar to other types of copyright litigation, courts in the Second Circuit and Ninth Circuit dominate the substantial similarity space, with the Ninth Circuit more recently displacing the Second Circuit as the primary venue for substantial similarity cases. Courts also rely on opinions from these two circuits more than any other source in interpreting and applying the substantial similarity test. Second, courts typically spend little time assessing whether a defendant actually copied from the plaintiff’s work. Courts mostly decide this first prong of the substantial similarity test as a matter of whether defendants had access to the plaintiff’s work, and they mostly favor plaintiffs on this question. Courts rarely rely on expert evidence or assess the two works’ similarities on this first prong, despite courts and commentators frequently opining otherwise. Third, the second part of the test, where courts assess whether the defendant’s copying amounts to improper appropriation, is characterized by significant heterogeneity. No dominant means exists for resolving this question, and, in any given opinion, a court typically uses multiple subtests and copyright limitations to decide this inquiry. Courts also use expert evidence more frequently under this prong of the test than the first part, a result that defies conventional wisdom. Finally, defendants win substantial similarity cases slightly more frequently than plaintiffs. This is further evidence that prong one of the test, where plaintiffs enjoy significantly greater success, appears to be largely inconsequential. The data also suggest that one of the keys to winning, for either defendants or plaintiffs, is the extent to which the court engages with and discusses copyright limitations.

We conclude by considering several implications. First, courts should maintain the two traditional prongs of the substantial similarity test as distinct and reinvigorate their assessments of similarity under the first prong of the substantial similarity test. Second, courts should make discussing and applying any relevant copyright limitations the heart of their prong two analyses to ensure that copyright law serves its constitutional purposes.

Shame permeates the experience of intimate partner violence (IPV). People who perpetrate IPV commonly use tactics designed to cause shame in their partners, including denigrating their dignity, undermining their autonomy, or harming their reputation. Many IPV survivors report an abiding sense of shame as a result of their victimization—from a lost sense of self, to self-blame, to fear of (or actual) social judgment. When seeking help for abuse, many survivors are directed to, or otherwise encounter, persons or institutions that reinforce rather than mitigate their shame. Survivors with marginalized social identities often must contend not only with the shame of IPV victimization, but also with the shame that follows being stigmatized or otherwise assigned inaccurate or incomplete “identities.”

Understanding how these layers of shame can shape a survivor’s experience matters. Shame can be a destructive harm that devastates a person’s sense of self-worth. It can lead to long-term psychological injury and can be both a source and outcome of trauma. A desire to reduce shame’s damaging impact can cause survivors to utilize coping behaviors that may be self-protective, but profoundly misunderstood by the people and institutions to whom they turn for help. Included among those institutions is the civil legal system. Protection orders are the most common legal intervention for IPV and can be critical tools for responding to it. Yet, to obtain a protection order, survivors must enter a process that often deprives them of their privacy and ability to control their self-image—experiences anchored in shame. Without understanding shame’s behavioral and psychological effects, survivors risk having their claims of victimization discredited, harming their ability to obtain safety and relief.

This Article explores these individual, social, and institutional dimensions of shame. It examines how those who work or interact with survivors can better understand the shame that results from traumatic experiences, and the trauma that results from shame-intensive ones. This Article further explores strategies to reduce the shame that can pervade civil litigation. These strategies include prioritizing survivor dignity and narrative control—critical antidotes to the injury of shame.

From the moment social media companies like Facebook were created, they have been largely immune to suit for the actions they take with respect to user content. This is thanks to Section 230 of the Communications Decency Act, 47 U.S.C. § 230, which offers broad immunity to sites for content posted by users. But seemingly the only thing a deeply divided legislature can agree on is that Section 230 must be amended, and soon. Once that immunity is altered, either by Congress or the courts, these companies may be liable for the decisions and actions of their algorithmic recommendation systems, artificial intelligence models that sometimes amplify the worst in our society, as Facebook whistleblower Frances Haugen explained to Congress in her testimony.

But what, exactly, will it look like to sue a company for the actions of an algorithm?

Whether through torts like defamation or under certain statutes, such as those aimed at curbing terrorism, the mechanics of bringing such a claim will surely occupy academics and practitioners in the wake of changes to Section 230. To that end, this Article is the first to examine how the issue of algorithmic amplification might be addressed by agency principles of direct and vicarious liability, specifically within the context of holding social media companies accountable. As such, this Article covers the basics of algorithmic recommendation systems, discussing them in layman’s terms and explaining why Section 230 reform may spur claims that have a profound impact on traditional tort law. The Article looks to sex trafficking claims made against social media companies—an area already exempted from Section 230’s shield—as an early model of how courts might address other claims against these companies. It also examines the potential hurdles, such as causation, that will remain even when Section 230 is amended. It concludes by offering certain policy considerations for both lawmakers and jurists.

It’s the forgotten, discarded, disposable people. That’s so often who you find in jail—the forgotten.

—Rev. David Kelly, explaining why he devotes himself to working with children coming out of the juvenile detention system.

Many schools treat children as “disposable.”

—Francisco Arenas, Juvenile Probation Officer at Cook County Juvenile Probation.

Schoolchildren are being strip-searched based on little or no reasonable suspicion, and schoolchildren are being targeted for searches based on their race, disability status, gender, or homelessness. This is possible because the Supreme Court has issued only two opinions in its history about the right of schoolchildren to be free from unreasonable searches and seizures in schools. With those two cases, the Court has established a special test for schoolchildren, far more permissive than that applied to those suspected of serious criminal wrongdoing. Two cases in thirty-five years are not enough to regulate the lower courts’ oversight of literally millions of searches and seizures conducted in schoolhouses throughout the nation every year—a lack of oversight that lower courts have exploited to permit schools extraordinary discretion over schoolchildren and approve highly invasive searches. The existing literature focuses almost exclusively on the Supreme Court’s minimalist jurisprudence; in contrast, this Article uses a combination of methodological approaches to show how the law of searches and seizures in schools operates on the ground by conducting an in-depth case study of one jurisdiction, Illinois. We examine every case decided in Illinois and show that lower courts exploit the porousness of the Supreme Court’s test to permit questionable and sometimes even clearly illegal state actions. Yet even a comprehensive study of lower courts fails to fully grasp the extent of the problem: a minuscule proportion of the intrusions on schoolchildren by the state ever become cases—most internal school procedures are never independently reviewed at all, even if they involve unconstitutional intrusions. To understand how common searches and seizures of schoolchildren are and how often they cross the line into unconstitutionality, we draw on testimony from interviews with experts in the field. These interviews reveal that schools discriminate among students based on factors such as race, disability, homelessness, wealth, and community characteristics; and schools target some students for searches that can result in exclusion from school for shockingly long periods. Multiple interviewees independently described the system as treating some schoolchildren as disposable. The judiciary is failing to provide basic protections to our children, and Supreme Court intervention is imperative.

American jury trials are vanishing. Statistics indicate that the number of jury trials in U.S. federal and state courts has diminished for decades, a phenomenon that has become even more pronounced amid the ongoing COVID-19 pandemic. Courts throughout the nation are on track for more than a year without any trials by jury. But as jury trials wane, bench trials are dominant in federal and state courts for both civil and criminal cases. What does that mean, then, for evidentiary rules? The Federal Rules of Evidence (FRE), first adopted in 1975, codify federal evidence law and have been adopted by the vast majority of states. Technically speaking, these rules apply to both jury and bench trials. However, in practice, trial judges often apply rules of evidence loosely when they sit without a jury. Time and again in bench trials, objections to the admissibility of evidence are met with the judicial response of, “I’ll let it in and just give it the weight it deserves.” In an era when bench trials have become the new normal, such an enormous gap between the law in operation and that in the books suggests the need to reexamine the current arrangement of the FRE, to inquire whether bench trials should have their own customized rules of evidence, and, if so, what those rules should look like. This Article examines the similarities and differences between jury and bench trials in judicial fact-finding and explains why bench trial judges cannot rely on Free Proof and instead still need the guidance of evidence rules—albeit different rules than those used for jury trials. This Article proposes what those rules for bench trials might look like and discusses why and how such a project could go beyond bench trials, making a profound impact globally.

The Supreme Court’s decision in Bostock v. Clayton County extended Title VII’s prohibition on sex discrimination to lesbian, gay, and transgender individuals. This decision represents the latest step forward in a long line of Title VII jurisprudence, which slowly expanded the definition of “sex” as the cultural understanding of sex, gender identity, and sexual orientation improved. This Note critically reviews that history of jurisprudence, using the Bostock decision as a frame to examine the ways in which the courts’ definition of “sex” has evolved out of a flawed understanding of the relationships between sex, gender identity, and sexual orientation as categories. This Note argues that the Bostock decision, while a great victory for gay and transgender plaintiffs, nonetheless leaves unprotected those individuals who do not conform to a binary interpretation of sex in their gender expression or sexual orientation. The Note concludes with a discussion of potential solutions that would guarantee non-discrimination protections for those whose identities do not conform to the gender binary.

In 2020, women in South Dakota were deprived of an abortion provider in their state for seven months because the pandemic prevented out-of-state physicians from traveling. And as of late 2021, multiple states had only one abortion provider: if just one physician left, entire states or regions would be cut off from abortion access. The dearth of abortion care is not just caused by the pandemic or the escalating state-imposed restrictions on clinics that force them to close: it is the fact that laws in thirty-six states limiting the provision of abortion to physicians exclude an entire group of practitioners willing and able to safely administer early-term abortions. Including advanced practice clinicians (APCs)—who hold master’s or doctoral degrees—in the provision of first-trimester abortion will ameliorate the United States’ abortion provider shortage, especially for marginalized women.

Excluding APCs from abortion care is not just impractical: it is also unconstitutional. Since the Supreme Court made clear in Whole Woman’s Health v. Hellerstedt that medical evidence must support a state’s health-motivated abortion restriction, physician-only laws cannot pass constitutional muster. It is well established that there is no difference in health outcomes between APC and physician-administered first trimester abortions. But the Supreme Court overturning Roe. v. Wade signals an unwillingness to appropriately follow bedrock abortion precedent, meaning that federal and state legislatures must also repeal physician-only laws in the case that the Supreme Court continues to disregard long-standing precedent.