UC Irvine Law Review

The general public is misinformed on a broad range of vitally important topics, such as what the true crime rates are, whether the COVID-19 vaccine is part of a conspiracy to control the population, and who won the last presidential election. There are myriad factors contributing to this epistemic crisis wherein large segments of the public form false belief on these and other major issues. One factor is the vast amount of intentionally false speech disseminated to mislead the public, often termed “disinformation.” Leaders in politics, industry, and the media spread disinformation for their own self-serving purposes. These purposes include turning a profit, growing an audience, and getting elected to office. Although the law prohibits “fraud,” the legal definition of that term—that determines to a great extent the scope of which deceptions are actionable and which are protected speech—is narrowly focused on personal fraud. Schemes to defraud that are aimed at the public at large, by contrast, are rarely labeled “fraud” and are often protected under the First Amendment. Accordingly, disinformation is often allowed by law, despite the fact that (1) it is often knowingly false and disseminated for profit or advantage, and (2) it harms individuals or society. These harms include millions of deaths from tobacco, opioids, lead, and sugar; environmental destruction from climate change; and threats to democratic institutions. This Article highlights the difficult First Amendment issues posed by disinformation and argues that, in the search for solutions, we must consider the staggering amount of harm caused by disinformation. No adequate solution has yet been found for the mass proliferation of false and misleading claims, which is worse in today’s digital world than ever before. Indeed, given the complex and multi-faceted nature of the issue, any solution to it must be carefully tailored to regulate only narrow and well-defined categories of speech that are or should be unprotected, while carefully protecting the bedrock constitutional right to freedom of expression. But at the same time, the discussion around how to solve this problem must take into account the injuries caused by allowing unfettered self-serving falsehoods to be spread by those who hold the public megaphone.

On July 9, 2021, President Joseph R. Biden signed Executive Order 14036 (“Promoting Competition in the American Economy”), which directed the U.S. Food and Drug Administration (FDA) and the U.S. Patent and Trademark Office (USPTO) to collaborate on new approaches to increasing competition and lowering prices in the pharmaceutical marketplace. In response, the USPTO outlined several new initiatives, among them an intent to improve the robustness and reliability of issued patents. 

A major impetus for the Executive Order was the pervasive nature of pharmaceutical product hopping, which occurs when manufacturers introduce new follow-on versions of lucrative pharmaceutical products to the market, versions of low added commercial value like extended-release forms of drugs, or modifications to device components of combination therapeutics. Product hops are usually intended to mitigate lost market share due to generic competition or thwart generic competition entirely. Yet the small benefits of these new products are usually far outweighed by excess costs to payers and patients alike. Product hops remain an essential part of product lifecycle management strategies due to patents, many of which are obtained after the flagship product is on the market and which offer market exclusivity for these incrementally better products. These patents also discourage manufacturers from entering lucrative markets, encourage settlement and delayed generic entry, and result in the prescribing of marginally better product hops at brand-name prices. In doing so, they undermine the fundamental constitutional intent of the patent system—a time-limited exclusive right. 

Elevating patentability standards at the USPTO could mitigate product hopping through the rejection of weaker patents, which should eventually curtail patent applications from manufacturers that attempt to create “new,” yet arguably uninventive, products intended primarily to capture market share from would-be competitors. This article evaluates the core elements of patentability and relevant case law, highlighting opportunities for the USPTO to strengthen its review of pharmaceutical patents. When coupled with regulatory reforms that further mitigate the impact of product hops, pharmaceutical research and development may pivot away from product life cycle management strategies that focus on extending the profitability of older drugs facing the prospect of generic competition and toward transformative innovation that accelerates the development of the next generation of therapeutics and cures. 

Democratic decision-making in the United States does not solely affect U.S. citizens. Indeed, many such decisions impact people living in other countries, as well as noncitizens residing within the United States. Decisions on U.S. policies regarding climate change, immigration, trade, and military aid—to name a few—can have major implications for the lives of many non-Americans. Yet, in being noncitizens, such people effectively have zero representation within the democratic process that results in these decisions. This phenomenon illustrates what has become known as the problem of “democratic externalities.”

Theorists have proffered multiple democratic frameworks to resolve this problem—e.g., democratic cosmopolitanism, deliberative democracy, and epistemic aggregative democracy. Ultimately, though, none have managed to adequately mitigate the issue of underrepresentation that democratic externalities produce. Accordingly, this Article considers an alternative, albeit imperfect, route to addressing democratic externalities: transnational campaign finance. Specifically, this Article argues that by permitting foreign nationals to monetarily contribute to, or expend money in support of, political campaigns, a polity can better account for impacted noncitizens in its lawmaking and electoral decisions.

Over the past few decades, however, numerous U.S. states and countries have passed laws outright prohibiting transnational campaign finance. While there are certainly legitimate reasons to regulate the practice—e.g., corruption, distortion, misalignment, and national security—this Article contends that these measures have been too drastic in light of the democratic externalities problem. Thus, the latter portion of this Article provides guidance on how to best regulate transnational campaign finance in a way that mitigates its negative consequences without entirely impeding its pro-democratic value.

The legal landscape surrounding firearm possession is evolving rapidly. In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle & Pistol Ass’n v. Bruen. Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with a notable exception: felon-in-possession laws. This Article examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior—possession of a firearm—that is constitutionally protected for nearly everyone else.

I argue that as the Second Amendment expands to protect more and more firearm possession, a dichotomy has arisen in which those who live in the communities most heavily targeted by the War on Drugs of the 1980s and 1990s are increasingly becoming virtually the only Americans for whom firearm possession is illegal. I examine the history and development of felon-in-possession statutes to show that they were not enacted with a clear purpose, and are not narrowly tailored to criminalize the most dangerous behavior. Further, I show how existing federal enforcement priorities and the structure of the United States Sentencing Guidelines compound the harms of the War on Drugs by punishing individuals with prior drug offenses most harshly, even when there is limited evidence to suggest that they pose the greatest danger from firearm possession.

The Supreme Court recently confirmed that the Second Amendment permits individuals who pose a danger to the community to be disarmed in United States v. Rahimi. The question of how to determine who poses such a danger will be the next threshold of Second Amendment jurisprudence. I argue that as our understanding of the Second Amendment evolves, prosecutors and legislators must be cognizant of the lasting effects of the War on Drugs and question the assumption that any prior felony conviction is an accurate proxy for dangerousness.

With a growing elderly population, cognitive decline in drivers has become a significant public safety concern. Currently, over thirty-two million individuals who are seventy or older have driver’s licenses, and that number is growing quickly. In addition, almost 10 percent of seniors in the United States (those sixty-five and older) have dementia, and an additional twenty-two percent have mild cognitive impairment. Between a quarter and a half of individuals with mild to moderate dementia still drive. As cognitive abilities such as memory, attention, and decision-making skills deteriorate, a driver’s ability to operate a vehicle safely can be compromised. This not only puts the driver at risk but also endangers passengers, other motorists, and pedestrians. As the population ages, the number of drivers experiencing cognitive decline is increasing, escalating the risk of accidents.

For many older adults, however, driving is a key aspect of independence and mobility. Losing the ability to drive can lead to social isolation, dependence on others, and a decline in overall well-being. Understanding and addressing the challenges of cognitive decline in relation to driving is crucial for maintaining elderly individuals’ quality of life. Nonetheless, determining when someone should stop driving due to cognitive decline is especially difficult because cognitive decline often progresses gradually and is challenging to assess.

Current legal mechanisms fail to resolve the tension between promoting personal autonomy and protecting public safety. Existing approaches to the problem are therefore unsatisfactory. Requiring road tests of every older adult is both overly intrusive and economically inefficient. At the same time, however, revoking driving privileges only after an accident has occurred creates a public safety hazard. Without an effective system of regulation, informal practices emerge. Medical professionals who recognize that a patient’s driving is likely to create a safety risk may either ignore the matter entirely or pressure family members to take away the keys from their loved one. And when accidents do happen, family members are sometimes sued for failing to prevent their loved ones from taking the wheel.

This Article recommends a framework for enhanced medical and regulatory protocols to navigate the intricacies of driving with cognitive decline. It recognizes that earlier efforts to solve the problem have often failed because they relied too heavily on a single point of responsibility. Our proposed framework, by contrast, creates a connection between the medical provider and the motor vehicle regulator and sets out clear lines of responsibility. The Article develops recommendations for effective interventions, analyzing the role that physicians should play and proposing legislative changes. Driving with cognitive decline is a multifaceted challenge that impacts public safety, personal independence, family relationships, legal rights, and healthcare practices. Addressing it effectively requires a balanced and thoughtful approach that considers the needs and rights of all stakeholders.

This Article offers a novel—antitrust—perspective on a growing phenomenon in capital markets: institutional investor coalitions. In recent years, a large group of powerful institutional investors, who collectively own significant equity stakes in most public companies, have created alliances on various corporate governance issues. Traditionally, corporate law has encouraged investor cooperation on these issues, regarding it as the solution to the well-known collective-action problem facing shareholders in public companies. As this Article shows, however, the prevailing positive view underscores a crucial point: members of the coalition are not only co-owners of companies but also competitors in capital markets. In the primary markets, institutional investors are competing buyers of shares, vying for share allocation. In the secondary market, they compete as asset managers, using their portfolio performances to attract retail investors and sponsors. The concern raised in this Article is that cooperation among institutional investors—even on seemingly benign governance matters—could facilitate tacit collusion and grant coalition members an unfair advantage in capital markets.

Focusing on one powerful investor coalition that emerged in recent years with the goal of limiting the use of dual-class stock in initial public offerings (IPOs), this Article demonstrates that when competing buyers of shares coordinate their response to a governance term at the IPO juncture, they effectively form a buyers’ cartel. Due to the coalition members’ collective dominance over the demand for public offerings, their orchestrated efforts lead to two potential economic distortions. First, abnormal underpricing of dual-class stock, which allows members to buy shares in the primary market below their fair market value. This price distortion explains the significant amounts of money often being “left on the table” by dual-class issuers. Second, the coalition can pressure issuers into adopting suboptimal governance arrangements, such as mandatory time-based sunset provisions, which may be value-decreasing. Both distortions can lead to the same sort of economic harm that antitrust law is designed to prevent.

The potential anticompetitive effects of investor coalitions require an immediate policy response. This Article thus proposes a multi-faceted regulatory reform aimed at curbing institutional investors’ collective actions that may limit competition. The suggestions include restricting collective actions in the primary market and, under certain circumstances, banning communication between institutional investors during IPOs. Furthermore, the Article emphasizes the need for targeted antitrust scrutiny of institutional investor consortia—advocacy groups that coordinate governance initiatives on behalf of their members—given their demonstrated capacity to facilitate communication and sustain collusive practices. The proposed policy measures seek to strike a delicate balance between the goal of corporate law to encourage cooperation among shareholders and the goal of antitrust law to restrain collaboration among competitors.

2024 was poised to be the largest election year in history, with pivotal elections in Asia, Europe, and the Americas encompassing regional, legislative, and presidential contests, capturing the attention of half the globe. In an era dominated by social media, these elections were influenced by information dissemination through digital platforms.

Over the last two decades, the landscape of public discourse in matters of civic concern has undergone a transformative shift, moving from traditional media to personalized digital social media outlets. Algorithmic features now selectively match content to users, fostering engagement but also giving rise to issues such as echo chambers, filter bubbles, and sensationalized content. While much attention has been devoted to the challenges posed by personalized discourse, this paper sheds light on a critical aspect that has been overlooked in regulatory paradigms: the erosion of an open, public sphere for discourse due to individualized manipulated content matching.

In a well-functioning democratic system, an informed citizenry is paramount. However, amplification algorithms and recommendation systems—referred to as “personalization features” here—employ manipulated partial and even contradicting messages designed to targeted audience, while excluding users who may object, correct or protest against them. This paper aims to address the question of whether democratic public discourse can be preserved amidst the individualized flow of manipulated content on social media.

Existing regulatory approaches—including content regulation, algorithm regulation, and privacy regulation—primarily focus on data profiling, algorithmic content matching, and the nature of discourse within personalized spheres. They prove inadequate in mitigating harm to the public sphere resulting from the selective distribution of individualized manipulated content, hindering open public discussion. Even regulatory initiatives specifically targeting accessible public discourse fall short in addressing both the individualized and manipulated aspects of personalized speech.

The research findings highlight a pressing concern—the inherent contradiction between the individualized manipulated flow of content and the principles of democratic deliberation. Urgent regulatory frameworks are needed to safeguard a public space for deliberation that is accessible to all, facilitating joint decisions and the construction of pluralistic democratic societies. Potential solutions may involve establishing alternative spaces for public discourse and recognizing distinct considerations for issues in the public sphere. Additionally, a multifaceted strategy beyond online discourse or algorithm regulation is proposed, aiming to foster constructive dialogue, respect, and tolerance in the digital ecosystem, complemented by public education.

Americans celebrate the arts and how they increase our economic and collective well-being. Nonprofit arts and culture organizations are the primary vehicle by which individuals create art, attend events, and support millions of jobs in the industry. This has led to a perception that arts organizations have an effective framework for productivity and efficiency. Yet, the COVID-19 pandemic uncovered tumultuous relationships between artists, staff, Board members, and executive leadership within several nonprofit arts organizations.

Although Americans regularly celebrate, support, and engage with the arts, the nonprofit arts industry is fraught with disconnected leaders, disgruntled staff and artists, and ineffective work environments. This Note explores why those issues persist and what can be done. First, I argue that the failures of nonprofit arts organizations’ Boards of Directors to uphold their responsibilities and manage stakeholder relationships are a key cause of the current destabilization of the nonprofit arts sector. Against that backdrop, I examine the current federal and state regulatory frameworks for tax-exempt organizations and highlight why certain mechanisms are ineffective in supporting accountability and transparency. Finally, as a solution, the Internal Revenue Service (IRS) should enumerate a category for arts and culture in the Internal Revenue Code (IRC). With this newfound designation, I then argue that the IRS should establish minimum governance standards for the boards of nonprofit arts organizations and tie those standards to an organization’s ability to receive and maintain its tax-exempt status.

Because of the immense economic and respected social value of arts and culture in the United States, nonprofit arts organizations must be held to a high standard to maintain public confidence. This Note believes that creating greater standards for nonprofit arts entities to receive federal tax-exemption status will improve organizational accountability and help such organizations in the United States remain the cultural beacon we believe them to be.

The legal profession requires the best of its members, asking them to act in ways that respect and prioritize the needs of clients, so long as those needs are ethical and legal. However, when an attorney works within a large law firm, they are faced with not only requirements from their clients, but also from their peers, supervisors, and client representatives. This Note focuses on (1) the origins and history of the large law firm structure that is so common today, (2) the ethics of practicing law in large law firms and how it impacts the individual, and (3) how to overcome ethical pitfalls common within the organizational structure. It concludes with a review of the literature that is most likely to find solutions to resolve these ethical dilemmas.