UC Irvine Law Review

Social media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence routinely defers to parental decisions, in contrast to emerging case law. Second, existing legislation fails to leverage family law to bypass First Amendment barriers. Lawmakers should refocus on legislating to empower parents to supervise their children meaningfully on social media, instead of focusing on harmful content itself. In the real world, parents enjoy nearly unlimited authority to decide how much privacy to afford a minor, what ideas may reach them, and who may contact them. The law supports parents in these efforts, and it can do so in the social media context as well. But it is essential for the state to identify this as the interest behind regulation in order to survive First Amendment challenges. We conclude by proposing a Parental Decision-Making Registry that could reduce the enormous power of social media companies in the lives of minors while resting securely on law of the parent-child relationship.

The rapid rise of artificial intelligence (AI) is reshaping numerous industries, and the Outer Space sector is no exception. This Article examines the transformative implications that AI technologies will have on this domain’s liability framework as established by the Liability Convention.

The Article begins with an in-depth overview of this international treaty, followed by an exploration of how AI technologies can enhance various space activities through autonomous decision-making. It then examines how these advancements are challenging Outer Space’s existing liability regime. Here, the Article spotlights how incidents caused by AI-driven space objects can raise complex accountability issues. Specifically, it identifies critical gaps, including ambiguities in the concept of the “launching State,” the suitability of the “absolute liability” regime, and the applicability of “fault-based liability” standards to AI systems.

To address these complexities, this Article proposes reforms to the Liability Convention in preparation for this AI space age, including (i) expanding the “launching State” definition to include broader stakeholders, (ii) reexamining the “absolute liability” regime in light of AI autonomy, and (iii) reforming the “fault-based” liability system by establishing standards of care tailored for AI systems.

Through these adaptive measures, this Article hopes that the liability framework governing Outer Space can evolve to accommodate AI’s role in space exploration, ensuring fairness, accountability, and the continued advancement of humanity’s cosmic endeavors.

The Supreme Court has repeatedly upheld distinctions between unwed mothers and unwed fathers on the basis of sex. Unwed women are recognized as mothers automatically upon birth, while unwed men must undertake a series of affirmative steps before being recognized as fathers. One of the central rationales for this differential treatment is the Court’s concern with problems of proof and potential for fraud that plague paternity, but not maternity, determinations. Legal scholarship has been rightly critical of these enduring sex-based distinctions, but it has largely ignored the role that fraud plays in these cases and in the broader regulation of nonmarriage. That is the task of this Article.

This Article engages in a close reading of the Supreme Court’s use of fraud across a range of opinions—from addressing state law rules setting out property rights at death to federal laws dictating the transmission of citizenship at birth. The presence of fraud in the Court’s reasoning is significant, but the way it functions is neither obvious nor straightforward. The Court claims to be concerned with “paternity fraud,” which takes place when there is no biological connection between alleged father and child. Yet not a single decision involves a missing genetic link, and the Court’s accepted response to the fraud routinely fails to require proof of one. This Article argues that the concern articulated in the language of paternity is, in fact, a concern over the lack of marriage between the father and mother. As such, what the Court presents as an objective rationale based on biology is, in fact, a subjective and value-laden determination about what kinds of relationships the law should recognize.

Exposing the work of fraud matters. At a minimum, it shows that the purported governmental interest in fraud prevention is not legitimate and should no longer count as an uncontroversial reason to support the constitutionality of distinguishing between men and women in their roles as fathers and mothers. Paying attention to how fraud functions demonstrates that such distinctions are based on the legacy of contestable legal rules rather than, as the Court claims, any inherent biological difference. More broadly, this Article exposes how appeals to fraud transform what are disputable normative judgments into empirical-sounding evidentiary concerns. Fraud, however, is anything but neutral. It perpetuates a gendered state of affairs that casts women as mothers always and men as fathers only within marriage. It also functions in racist ways and has long been leveled against nonwhite families. With this critique of fraud in hand, we can better evaluate how fraud is regularly raised in the regulation of nonmarriage, where it works to limit access to material goods in both gendered and race-salient ways.

In 2018, in Sexton v. Beaudreaux, the Supreme Court, while purporting merely to summarize prior caselaw, articulated a constitutional standard for assessing eyewitness identification evidence that distorted the Court’s earlier due process jurisprudence and posed a serious—and until now largely unrecognized—threat to the truth-seeking function of the criminal justice system. Previously, the Court had used a relatively straightforward, two-part test for evaluating the constitutional admissibility of eyewitness evidence: First, the defendant was required to prove that police used an identification procedure that suggested the identity of the suspect and that police lacked any reasonable justification for failing to employ a more reliable procedure; second, if the defendant succeeded in showing that law enforcement used an “unnecessarily suggestive” procedure, the court should evaluate a series of ostensibly independent reliability factors to determine whether the suggestive procedure gave rise to a “substantial likelihood of misidentification.” In Beaudreaux, however, the Court asserted that “unnecessary suggestion” means something more than suggestion that is unnecessary; instead, the Court concluded that judges should find an identification procedure to be unnecessarily suggestive only if the procedure was so egregiously defective that the court could conclude, even before evaluating the reliability factors, that the procedure gave rise to a high probability of misidentification. Then, if the defendant succeeds in clearing this heightened hurdle, the court should assess the reliability factors to determine (for a second time) whether the eyewitness in question was likely mistaken. Lower courts have already begun citing the Beaudreaux Court’s flawed dictum with approval, and, even before Beaudreaux, it was common for lower courts to impose heightened burdens on defendants who challenged eyewitness evidence. Ultimately, the Beaudreaux Court’s pronouncement not only misreads Supreme Court eyewitness precedent but will lead to more convictions of innocent defendants based on eyewitness misidentification, which is already a leading cause of wrongful conviction. Finally, analogies to the Court’s due process jurisprudence on involuntary confessions and to its probable cause jurisprudence also counsel against adoption of the Beaudreaux Court’s error.

This Article examines a significant yet underexplored feature in the decline of worker power: the gradual erosion of protections under the National Labor Relations Act (NLRA or the Act) for workplace protest by rank-and-file, nonunion workers. Rather than protect that protest as necessary to engender solidarity and organizing, current labor doctrine offers employers various opportunities to fire workplace agitators. Focusing on nonunion workers standing up to management, this Article offers three key insights into U.S. labor law. First, it draws on social movements to confirm strife’s vital but uneasy role in workplace solidarity. Second, it unearths the NLRA’s original intention to protect the co-constitutive roles of strife and industrial peace. The New Dealers viewed conflict as a short-term step toward achieving collective bargaining’s peaceful dispute resolution. Third, it shows how the United States Supreme Court and National Labor Relations Board (NLRB) misconstrue the NLRA’s industrial peace objective as both the means and the ends of labor relations, to the detriment of strife and the solidarity it generates. This Article calls for greater doctrinal and statutory protections for nonunion workers engaged in workplace protest while clarifying when protests cross the line.

Despite the significant impact of prosecutorial discretion on criminal justice outcomes, there are very few large-scale studies of state and local prosecutor decision-making. Our previous empirical research demonstrated that a defendant’s race and class do not affect prosecutorial charging decisions and revealed a gap in the literature about factors that do influence prosecutorial charging decisions and sentencing recommendations. Accordingly, we designed a study to obtain more information about prosecutor discretion and decision-making. Over 500 prosecutors from across the United States completed our vignette-based experiment and survey, which produced quantitative and qualitative data. We transformed these data to use Correspondence Analysis (CA), an empirical method that allowed us to identify associations between prosecutors’ charging decisions and sentencing recommendations for a hypothetical defendant and the prosecutors’ individual characteristics, office and jurisdiction characteristics, and the factors they described as important to their decision-making. Our analysis shows two dimensions of prosecutor decisions—Punitive vs. Therapeutic Sentence and Most Severe Criminal Record vs. Least Severe Criminal Record—and we mapped the prosecutor decisions onto these dimensions. Our results also reveal factors associated with prosecutor decisions about charges and whether to (i) defer prosecution or suspend sentences, (ii) recommend a monetary penalty, (iii) recommend a term of confinement, or (iv) seek alternative sentences, and we discuss these findings in the context of effects on recidivism.

This Note explores the use of Artificial Intelligence (AI) in law and how it will transform what is deemed reasonable for lawyers to accomplish. It explores the present introduction of AI into law firm workflows, the anticipation of its increasing prevalence, and its potential to enhance efficiency, accuracy, and time management. I argue that the increased capabilities and utilization of AI will change what is reasonable for lawyers to do under the American Bar Association’s Model Rules.

In June 2023, the Supreme Court published its opinion in Amgen Inc. v. Sanofi. The Court unanimously affirmed the Federal Circuit’s holding that certain functional patent claims directed to a class of monoclonal antibodies were invalid for lack of enablement under 35 U.S.C. §112(a). After Amgen, innovators of these astounding medicines are caught between a rock and a hard place: The Court’s enablement standard is clear enough, but the current state of the art, saddled with inherent unpredictability, makes it operationally impossible for applicants to satisfy that standard when they attempt to claim more than a handful of discrete antibodies.

The upshot is an antibody patent singularity—applicants can enable, and thus claim, only the individual antibody structures they actually make, test, and disclose. And yet, a routine practice in the art called conservative replacement permits scientists to exploit known antibody structures to create literally noninfringing competitor antibodies whose properties may be identical to therapies already on the market. One way to counteract this decimation of the literal scope of antibody patents is through the doctrine of equivalents. Therapeutic antibody patent holders will likely assert infringement by equivalents of their narrowed claims against competing antibodies. Courts, however, lack a robust framework to guide the antibody equivalents analysis. Without such a framework, the analysis suffers and leads to undesirable outcomes that hamper innovation.

To prevent antibody innovation from stalling, the clinical properties of antibodies—not their molecular structures—should be the primary determinant of structural therapeutic antibody equivalents. Incorporating clinical data into the infringement inquiry hardly changes the analysis. It merely permits patent holders to assert infringement against other antibody therapeutics that perform the same function in the same way to achieve the same result. This analysis complies with the core tenets of patent law and the doctrine of equivalents. Furthermore, a clinical equivalents analysis counterbalances the obliteration of antibody claim scope resulting from Amgen, insures against the risk of subsidizing follow-on literally noninfringing copiers, and realigns industry incentives to promote innovation in a life-saving field.