UC Irvine Law Review

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This Article offers a critical account of the law of press freedom. American law and political culture laud the press as an institution that plays a vital role in democracy: guarding against corruption, facilitating self-governance, and advocating for free expression. These democratic functions provide justification for the law of press freedom, which defends the media’s autonomy and shields the press from outside interference.

But the dominant accounts of the press’s democratic role are only partly accurate. The law of press freedom is grounded in large part in journalism’s professional commitments to objectivity, public service, and autonomy. These idealized characterizations, flawed from the start, drive a business model and a legal strategy that is increasingly at odds with democracy itself. In both its journalism and in its legal advocacy, the press often reifies existing social and racial hierarchies. An inconsistent defender of free expression, the press strategically sits out many First Amendment battles; in others, it pursues narrow, modest remedies unlikely to protect many outside of its ranks. While the press continues to burnish its image as a critical force for the preservation of democracy, its legal strategy has become increasingly detached from the public good.

Alongside a more clear-eyed assessment of the press’s foundational commitments should come a broader rethinking of the press’s freedom and legal strategy. Amid dire technological, economic, and political challenges, the reigning ideology of press freedom disserves press institutions as well as broader First Amendment values and democratic interests. This Article concludes by pointing a path toward alternative legal strategies for the press that would better respond to contemporary challenges to democracy.

A majority of state legislatures have introduced bills prohibiting public schools from teaching certain “divisive concepts” attributed to critical race theory (CRT), with at least fifteen states successfully enacting them. This Article applies a critical race theory analysis to these critical race theory bans, finding that the bans embody white privilege and especially its companion, white fragility.

After providing a primer on critical race theory, Part I explains how the state bans profoundly misunderstand critical race theory, which focuses on how systems and institutions reproduce racial inequality. These bans, however, assume that racism is individual, intentional, and rare, and that racial harm is caused by discussions of race rather than systemic racism. At the same time, to the extent the laws forbid suggesting that systemic racism is widespread or that the United States is not a meritocracy, these bans may prevent students from learning core CRT concepts.

Part II then examines these bans through a critical race theory lens. It first demonstrates how the laws’ ignorance of critical race theory and of the role race plays in the United States reflects white privilege. It next explains how the bans embody white fragility—those defensive behaviors white people may exhibit when their racial advantages are pointed out—in the way they overreact to imagined threats, focus on white people’s wellbeing, frame white people as the true victims of race relations in the United States, and finally assert false equivalencies.

Ultimately, critical race theory bans reinscribe racial inequalities. By chilling classroom discussions about the creation and maintenance of racial hierarchies, these bans leave unaddressed all the structural issues that critical race theory aims to uncover. It is a perfect vicious circle.

The administrative state is gradually embracing artificial intelligence (AI) algorithms. The advent of the so-called automated state has raised concerns over accountability, transparency, and fairness and engendered proposals for legal regulation. Yet the notion that algorithms are not merely technical instruments but encode social behavior embedded in a bureaucratic context has largely been missing from the discourse. This Article identifies algorithms as sociotechnical systems embedded in an organizational context, which can function as bureaucratic governance instruments. It argues that external legal institutions, whether legislative endeavors or judicial review, lack the capacity, insight, and perspective to achieve meaningful accountability in reviewing the administrative use of AI algorithms.

The Article suggests moving beyond seeing algorithms as a distinct phenomenon to regulate, to a more holistic view of algorithms as a bureaucratic challenge, which entails confronting inconsistencies, inaccuracies, and administrative culture, while taking account of institutional design. By doing so, it follows in the footsteps of scholars of internal administrative law, comprising of the complex set of rules, guidelines, and procedures of the bureaucracy, and highlights internal governance as means of improving outcomes and ensuring accountability. It also discusses the points of contention and outlines the doctrinal questions of administrative law that are likely to occupy judges and lawyers when dealing with internal governance with AI in the government.

Concurrently, this Article uncovers the internal law of administrative algorithms, which is emerging from a set of informal documents developed in the federal government. The Article reviews this corpus and distills the main tenets of responsible and trustworthy AI that will guide how administrative agencies design and implement their AI systems in the foreseeable future and imbues general principles with actionable goals.

In theory, the Department of Homeland Security bears the burden of proof when it seeks to deport a person from the United States. But the government rarely has to meet it. This Article presents original data from live observation in Immigration Court, documenting that almost all respondents in deportation proceedings admit and concede the charges against them, even when they have attorneys, without getting anything in return from the government. Focusing especially on the role of immigrant defense lawyers, the Article explores why this is happening. It critiques the legal standards of proof used in Immigration Court, while also exploring normative ambiguities about the role of immigration lawyers in deportation proceedings. Together, these factors are effectively depriving many immigrants of the vigorous legal defense that they deserve.

In the half century since the Supreme Court decided Miranda v. Arizona, custodial interrogations have become a mainstay of popular culture. Even casual viewers of police procedurals will be exposed to hundreds of depicted arrests, interrogations, and other law enforcement conduct. It has become commonplace for courts, commentators, and the general public to assert that people learn about their rights from television.

Yet if people do, in fact, learn about their criminal procedure rights from television, what they are learning is dangerously inaccurate. In a comprehensive content analysis of ten seasons, totaling 229 episodes, drawn from two of the most highly watched crime dramas on television, we demonstrate that these shows mislead viewers about the nature and scope of Miranda and other criminal procedure rights, almost always suggesting that these rights are less protective than they actually are. First—and contrary to widely held belief—these crime dramas rarely depict the actual administration of the Miranda warning. Second, our research reveals a laundry list of ways that crime dramas undermine Miranda: for every full reading of the Miranda warning, the shows approvingly portray sixty-five Miranda violations; invocations of Miranda are regularly rejected and treated as a sign of guilt; other criminal procedure protections are routinely violated with impunity; and defense attorneys are consistently portrayed as unethical and ineffective. In all, the crime dramas we reviewed depicted events that undermine Miranda at a rate of ten times per episode.

If Miranda and associated rights were robustly respected by police and uniformly protected by courts, it might not matter so much how well the general public understood those rights. But remedies for Miranda violations are increasingly out of reach: in 2022, for example, the Supreme Court held in Vega v. Tekoh that a police officer’s failure to read the Miranda warning prior to a custodial interrogation does not alone give rise to a federal civil damages remedy. This means that people who have been taken into custody will often be their own first and last line of defense, and if they do not understand Miranda and related criminal procedure rights, they will not be able to protect their own interests. We therefore propose an array of measures to combat the undermining of Miranda. These include revisions to doctrine, legislative reform of policing practices, responsible measures for the entertainment industry, and steps for other stakeholders.

“Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home.”

—Moore v. City of East Cleveland1

All fifty states have adopted the “best interests of the child” standard governing initial child custody determinations. However, the wide judicial discretion accompanying this broad standard has resulted in disparate application across custody cases nationwide. These disparities are particularly prevalent in cases where children have a significant connection with extended family members or nonparent caregivers.

As of 2017, a third of American households with children relied on extended family for childcare assistance. This percentage is likely even higher given the uptick in multigenerational households during the COVID-19 pandemic. Multigenerational family living, once viewed primarily as a cultural niche, is growing across all racial groups. Now, nearly one-quarter of Americans aged twenty-five to thirty-four reside with parents or older relatives. Among those living in multigenerational households, over 70% report they reside with a child under eighteen. These statistics reflect the overall reality that today, less than half of all children live in a traditional two-married-parents nuclear family. Recent legislative proposals recognize the expansion of the nuclear family, granting legal rights and status to new categories of individuals. Despite this shift away from the traditional parent-child family structure, almost all statutory and judicially determined factors that govern state courts’ determination of the “best interests of the child” in custody cases only consider the relationship between biological parents and children.

This Article conducts a fifty-state survey of the current statutes and cases applying the “best interests of the child” standard in custody determinations. The survey results indicate that although every state and D.C. have adopted the “best interests of the child” standard, its application across cases is inconsistent, particularly in cases where a parent resides with extended family members or regularly seeks childcare assistance from extended family members. Based on the survey findings, this Article advances a three-pronged recommendation to increase consistency in these cases to meet the realities of expanding family structures: (1) adoption of mandatory, delineated statutory factors; (2) a requirement to make specific findings of fact as to each statutory factor; and (3) the addition of a factor considering the history and nature of the child’s relationship with any extended family members and nonparent caregivers.

This Note discusses failed police accountability measures and suggests a new intervention, “Police Yelp,” that focuses on community control over police officers. The Note discusses the current institutional measures that have attempted to control police but have failed, largely due to their reactive and institutional nature. To better control police and ensure they are policing as communities want to be policed, this Note argues for community control over police through a democratic process, similar to the way that users interact with businesses on Yelp. The Note draws on power shifting as articulated by Jocelyn Simonson, among others, which advocates for shifting power from the elite to the everyday residents who are subjugated to the deadly power of police. Through “Police Yelp,” residents will be given the authority and platform to report on every interaction they have with police, and police departments will be required to take action against their officers based on those reviews by residents. In this way, “Police Yelp” gives the power back to the community to determine how, when, and by whom they want to be policed.