UC Irvine Law Review

This Article proposes a new means of restraining police power: quantitative limits on the number of law enforcement intrusions—searches and seizures—that may occur over a given period of time. Like monetary constraints, search and seizure budgets would aim to curb abusive policing and improve democratic oversight. But unlike their monetary counterparts, budgets would be indexed directly to the specific police activities that most enable escalation and abuse. What is more, budgets are a tool that finds support, conceptually, in the American framing experience. The Fourth Amendment has long been understood to require procedural limits, such as probable cause, on specific police intrusions. But such requirements are only part of the story; limits on overall police capacity, we argue, are also hardwired into the Fourth Amendment via its founding era history. Search and seizure budgets would help reinvigorate that promise, offering an important tool in the ongoing effort to curb over-criminalization and the ever-expanding technologies of surveillance.

In 2007, eleven major U.S. research universities and the Association of American Medical Colleges signed an accord titled In the Public Interest: Nine Points to Consider in Licensing University Technology. It outlined a range of issues that universities should consider when licensing their technology to the private sector—from reservations of rights and limitations on exclusivity to limiting dealings with patent assertion entities to making medical technologies accessible at affordable prices. More than talking points, the document proposed specific contractual clauses intended to promote the educational and public welfare missions of universities. Today, more than a hundred academic institutions and associations around the world have signed the Nine Points document. Yet in the fifteen years since the document was created, there has been no systematic, empirical assessment of its effect on university licensing practices. This Article fills that gap with the first empirical study of the impact of the Nine Points document on university licensing practices. Through a review of 220 publicly available university technology licenses signed both before and after the adoption of the Nine Points document, this Article finds that while the document prompted the expansion of educational and non-profit research using patented university technology, it resulted in few changes relating to the promotion of public health or access to medical technologies. This mixed adoption of the recommendations made by the Nine Points document suggests that there is little consensus regarding the nature of the ‘public interest’ that the Nine Points document sought to promote. This Article recommends that a reorientation of university technology transfer policy may be in order—one that could be facilitated through greater engagement of academic faculty, senior administrators, students, alumni, and other institutional stakeholders in setting policy for university technology transfer.

The warranty of habitability was touted fifty years ago as a gamechanger in rebalancing power between tenants and landlords. Under the warranty, a residential tenant’s duty to pay rent is conditioned on a landlord’s obligation to make repairs. Scholars who have studied the warranty of habitability have focused on its defensive use, primarily when a tenant is already in eviction proceedings. Consensus has emerged that the warranty as a defensive shield has failed to deliver meaningful benefits to tenants living in poor housing conditions.

This Article explores whether an affirmative use of the warranty, coupled with a new technology and community organizing approach, can improve tenant outcomes. Specifically, the authors designed, built, and implemented a novel tool available for tenants to bring pro se actions for money damages in small claims courts for breaches of the warranty of habitability. The Warranty of Habitability Abatement of Rent Mathematical Calculator (“H.A.R.M. Calculator”) is an efficiency application that allows law students and attorney volunteers to assist tenants in preparing small claims court pleadings. Tenants then file their complaints and, when successful, obtain judgments for money damages against their current or former landlords.

This Article contributes to the poverty law, housing law, and legal technology literatures by focusing on the warranty of habitability in a new way. An affirmative, tenant-centered remedy has the possibility of shifting power dynamics between tenants and landlords. Through initial data collected, the authors have developed working hypotheses that the tool will test through future research.

Vision is central to the human species’ evolution and success. This dependence on sight is reflected in the construction of property frameworks governing natural resources. When humans encounter natural resources they cannot see—hidden resources—they have difficulties imagining an appropriate property regime. As a result, they rely on existing two-dimensional property systems to govern natural resources, which are often three- or four-dimensional in nature. These hidden resources, invisible to the human eye, may be subsurface, distant, or not composed of a visible form. Examples of hidden resources include groundwater, minerals, petroleum, porous space, wind, migratory paths, deep oceans, viruses, and planets. This Article proposes that a lack of natural resource sight affects the ability to efficiently use, manage, and conserve resources. It further examines how revelation of a resource’s latent physical and visual traits results in efficient development and optimal law and policy, concluding that hidden resources should not be governed by the same property frameworks as visible property.

Higher education has long been hailed as the key to social and economic mobility. And yet, mobility itself is one of the greatest barriers to equity in higher education. Although scholars and policymakers have thus far paid scant attention to the role of transportation in higher education, this Article establishes why that oversight undermines educational equity.

Grounding its arguments in both interdisciplinary literature and rich original data from a multi-year mixed-methods research study, this Article demonstrates how transportation law and infrastructure affect college completion, disproportionately hindering completion for students of color. It further argues that higher education law and policy exacerbate, rather than alleviate, systemic transportation barriers for students, reinforcing education inequities.

This Article adds important dimensions to scholarship on both transportation and higher education. By focusing on the interaction between two structural systems, it offers a unique lens through which scholars can understand the complex landscape of higher education law. Finally, this Article offers education policymakers a range of policy and programmatic changes affecting transportation that can advance higher education equity.

The axiomatic beginning of every conflict of laws case is that a court must choose the law of one sovereign and disregard the law of all other sovereigns. One wins, gets to set the rules and regulate behavior, all others lose. This all-or-nothing scenario is the result of enshrining an old view of indivisible sovereignty into conflict of laws rules. The Article begins by explaining how this happened. Despite the importance of this assumption of indivisibility, no articles have examined why and how it became enshrined in conflict of laws doctrine. All too often it is treated as a truism without need for explanation or examination. The explanation, it turns out, is not compelling and has more to do with inertia and historical conditions hundreds of years ago than present concerns. Next, the Article critiques undivided sovereignty as outdated, descriptively misleading, and beholden to normative claims that are incompatible with modern conditions and sensibilities. It also explains the harm that adherence to indivisible sovereignty creates within the currently dominant conflict of laws methodologies.

In its place, the Article proposes that we reimagine conflict scholarship based on a fractional conceptualization of sovereignty. Instead of asking which sovereign gets to set all the rules, we should ask how to equitably share governance power and responsibility. The guiding insight of this proposal is that when conduct, assets, and litigants are distributed across multiple sovereigns, picking a single victor to provide governing law necessarily leads to a windfall of sovereignty for some and an undue denial of sovereignty for others. Instead of such a binary model of sovereignty, a fractional model of shared authority distributes the power to regulate conduct according to the fraction of the conduct that touches and concerns the sovereign. Sovereigns share responsibility over cross-border conduct. A deeper relationship to one sovereign leads to that sovereign having a greater fraction of influence, while a more fleeting relationship leads to a sovereign having a smaller fraction of influence. Each conflict of laws case would thus present a spectrum of influence to be divided into fractions among relevant sovereigns. Governing law in any given case is the mix of those fractions of influence. All concerned sovereigns would be able to regulate conduct but in a shared and mediated manner. Sovereignty becomes fractional.

The retail industry has endured a variety of changes throughout the last two decades. One major disruption in this industry has been the rise of internet retailers like Amazon that have pushed traditional brick-and-mortar retailers to either adapt in order to compete, or risk a slow and painful retail death. Antitrust law should take into account the realities of the retail industry and with whom large brick-and-mortar retailers are actually competing against. One avenue that antitrust law can use to take this reality into account is in its approach towards reviewing retail mergers. An important part of assessing whether a merger will have an anti-competitive effect on a specific geographic market involves determining which retailers are included in that geographic market to begin with. This Note argues federal courts and the Federal Trade Commission (FTC) should include Amazon as a competitor when assessing the geographic market for major brick-and-mortar retailers like Walmart, Target, Staples, and Best Buy. As of November 2021, federal courts have not had a chance to substantively consider whether Amazon should be included in the geographic market for large brick-and-mortar retail mergers. To the extent that courts have tangentially touched the issue, it appears courts have been hesitant to include internet retailers in the same geographic market as brick-and-mortar retailers. The FTC, on the other hand, has had a mixed response to Amazon and internet retailers. Inevitably, major brick-and-mortar retail mergers will occur, such as the recently attempted Staples/Office Depot merger, which will require consideration by the FTC and, in some cases, federal courts. When these mergers occur, Amazon should be considered a competitor when the merging retailers’ pricing and non-pricing conduct indicates that they consider Amazon a competitor.