UC Irvine Law Review

Americans are in a crisis of information access. While government and corporations are producing more data than ever before, we have shockingly little access to it, leading to serious, if not fatal, injuries. In 1964 Charles Reich wrote The New Property, a seminal article that led to the expansion of due process rights in the United States that may offer a solution to this problem. Reich argued that the United States’ government and commercial sectors had amassed incredible power, creating a societal imbalance that could be rectified if citizens were granted some form of “new property”.

Such circumstances—where corporate and government overlap has gravely diminished individuals’ rights to data—are eerily reminiscent of a half century ago, when Reich and his contemporaries were concerned with growing corporate and governmental powers. Today the power imbalance is largely due to government privatizing essential government functions and sweeping up unfathomably granular data behind company walls. Corporations and government have employed a variety of new legal tools to expand secrecy, including broader claims of trade secrecy, First Amendment defenses to disclosure requirements, and ballooning the Freedom of Information Act’s Exemptions that could be ameliorated with a new due process right.

This Article outlines why and how courts should expand on Reich’s groundbreaking idea by recognizing a similar due process right of access to government records. First, this Article examines the circumstances that led to The New Property and the expansion of due process rights in the 1960s. It then turns to today’s landscape and shows how a similar imbalanced informational environment exists. It follows by asserting that the Supreme Court should expand due process and create a right to records. It concludes by detailing three specific areas in which recognizing this right would ensure a healthy democracy.

In the United States, the term “poll tax” often refers to a very specific tactic of white supremacy: the use of tax policy to prevent voting by Black citizens. While “poll tax” is an accurate descriptor of these taxes, poll taxes have a much more expansive history within the twentieth century. Following in the rich tradition of comparative tax scholarship that looks at multiple jurisdictions to arrive at broader tax policy conclusions, this Article examines four distinct poll taxes applied by Anglophone governments in the twentieth century to illustrate a broad phenomenon I call “tax weapons”—the use of tax policy to harm specific groups.

The primary contribution of this comparative research on twentieth-century poll taxes is to further demonstrate how universal language in tax statutes can be used to effectively target specific taxpayers, with a focus on the targeting of taxpayers by race, ethnicity, or ancestry. By contrasting two poll taxes where race, ethnicity, or ancestry are explicitly mentioned in the law with two poll taxes where there is no mention of race, ethnicity, or ancestry, I uncover that the poll taxes that do not mention specific targets can be equally effective—if not more effective—at achieving discriminatory goals than poll taxes that specify their targets. These insights about how nominally universal tax policies can target political rivals inform the analysis of tax policy beyond just poll taxes.

Among the most inscrutable and plaguing roadblocks to implementing the Rule of Law in the United States and abroad has been delay—both postponement required by legal substance and procedure and delaying tactics offensively employed by parties and jurists who oppose clearly established law. The results include denial of justice and destabilization of our democratic legal system. This Article proposes the key of courts employing innovative and courageous procedural mechanisms to thwart delay and breakthrough the logjam of resistance to the Rule of Law. The Federal Circuit Court of Appeals governing six Southern states—Florida, Georgia, Alabama, Mississippi, Louisiana, and Texas—during the post-Brown v. Board of Education (1954) years provides an exemplar of how court systems can surmount dilatory and obstructive tactics to deliver justice.

This six-state circuit—then known as the Fifth Circuit—included officials, jurists, and communities vehemently opposed to desegregation and determined to avoid the dictates of Brown through delay and obstruction. In response, innovative and bold federal appellate judges employed legal methods others had not recognized or used as broadly to spur justice: expediting appellate hearings, making mandates effective immediately upon judgment, deeming traditionally non-appealable orders (such as a temporary restraining order denial) appealable, issuing injunctions pending appeal based upon the All Writs Statute and Federal Rule of Civil Procedure 62(g), dictating the substance of the trial court’s order upon remand, and deciding appeals by a single-judge panel. Contemporary opponents screamed foul—but the reforms stood and resulted in expedited justice.

Although others have lauded the post-Brown Federal Circuit Court governing the Deep South for its procedural ingenuity and resulting expeditious advances in post-Brown civil rights, this Article adds four critical dimensions: (1) diving deeper and broader (including through assimilation of prior scholarship) into the basis for and ingenuity of these procedures in civil rights cases; (2) extending appreciation of the long-term effect of these bold moves in future decades, including today; (3) proposing three replicable keys to the court’s successfully subjugating delay and obstruction: proactively structuring and employing local rules and procedures, applying procedural rules assertively in non-traditional ways, and harnessing what this Article terms “potential power” laws to grant the court the greatest and most flexible authority; and (4) arguing for the broad employment of this bold procedural approach when democratic legal systems globally confront systemic or purposeful obstruction. The Article, in sum, proposes a flexible paradigm for courts to employ to overcome incapacitating delay and resistance, and consequently deliver justice, through procedural assertiveness and undaunted mettle.

This article extends the work on firearms and the Black community through an expanded critique of Black allegiance to the progressive gun control agenda. I have argued that this “modern orthodoxy” is at odds with the history of, and longstanding justifications for, Black distrust of the state. This article extends that argument in light of more recent developments. It contends that racially biased enforcement of contemporary gun regulations adds a new layer to the case for Black distrust of the state and further undercuts the modern orthodoxy. It further argues that the shrinking efficacy and relevance of the gun control agenda similarly undercut the modern orthodoxy. This article concludes that the modern orthodoxy is a failed experiment and should be replaced with a race-sensitive, hard-look approach to firearms policy and the Black community.

With the repealing of Roe v. Wade and the elimination of abortion as a constitutionally guaranteed right, new statutes have been passed all throughout the United States prohibiting abortions, with some states encouraging private citizens to report those who “aid and abet” abortions in the state. These statutes come into direct conflict with medical ethical obligations, which, in turn, damage the patient-physician relationship by instilling in patients a fear that their physician will report their friends and family and bring a lawsuit under those statutes. This Note analyzes the effects of the repealing of Roe v. Wade and considers how the Health Insurance Portability and Accountability Act of 1996 (HIPAA), specifically the Privacy Rule, maintains the patient-physician relationship and allows patients to be candid with their health-care providers without fear that their physician will voluntarily disclose information and bring a lawsuit against them or their friends and family. This Note also briefly considers what expansions of HIPAA or privacy laws in the United States may help garner more protections for those seeking abortions, such as the passing of policies within private health-care organizations to ensure such information is classified as Protected Health Information (PHI) and thus protected under HIPAA.

This Note situates the labor rights movement between two stories: that of the Hotel Employees and Restaurant Employees Union’s (HERE) waitress locals and that of Genwa, a Korean barbecue (KBBQ) restaurant that organized with the help of the Koreatown Immigrant Worker Alliance (KIWA), a worker center. Highlighting the rise and fall of HERE’s waitress locals from the late 1800s to the mid-twentieth century provides historical context for why unions became dominant as a source of worker rights. Limited state labor protections made workers more dependent on outside sources of power to enforce better working conditions. Union membership brought pride and protection to the average worker. But during the early 1900s, shifts in legislation and Supreme Court precedent brought the downfall of waitress unions and unions generally. Since then, organizers in the food industry have had to get creative. The tactics utilized by Genwa employees to successfully organize are the products of today’s social and political landscape. Between a Supreme Court that has aligned more with conservative ideologies and restaurant lobbyists who have maintained strongholds in Washington, D.C., organizers have become more reliant on the powers afforded to them through state agencies. The progressive rights afforded to workers in California make the state’s organizing landscape unique. In helping Genwa employees organize, KIWA utilized state enforcement mechanisms to not only help employees get retribution for labor law violations but also pressure employers into agreeing to unionization. Considering changes in worker composition, labor laws, enforcement, corporatization of the food sector, and the relevant jurisprudence, this Note compares organizing efforts at two points in time to propose how organizing in the food industry should continue in the future.