UC Irvine Law Review

Half a century ago, the legal doctrine of informed consent was presumably transformed in order to enshrine the ethical goals of ensuring autonomous, voluntary, and informed decision- making in medicine into law. The reasonable patient standard introduced in Canterbury v. Spence and Cobbs v. Grant sought to center the patient by requiring that the physician disclose all information that a reasonable person in the patient’s position would consider material to her decision-making. However, those efforts, while laudable, have proven inadequate to achieving the ethical principles they were intended to achieve.

The legal doctrine of informed consent’s focus on the adequacy of physician disclosures— both in documents and conversations—emphasizes ritual over relationships. It has proven to be both needlessly adversarial and backward-looking, leading physicians to assume more disclosure is better for the purposes of preventing liability. In effect, the law’s onerous legal requirements necessitate overdisclosure at the expense of patient understanding, rendering it ineffective at actually informing voluntary decision-making. The objective reasonable person standard has proven inadequate in shifting the emphasis from physician disclosure to patient comprehension.

This Article introduces a new element to an informed consent claim: subjective patient understanding of the risks, benefits, and alternatives of the proposed intervention. This proposal transforms the standard for informed consent to emphasize patient comprehension and consent rather than solely focusing on physician disclosure in order to ensure the lofty ethical goals of clinical informed consent.

Despite deep inequality in social status and social capital in American society, legal scholarship has done relatively little to understand the structures that produce status and maintain its distribution. The Article argues that defamation law plays such a role.

The orthodox view is that defamation law’s goal is to protect dignity. This view was expressed in a famous Supreme Court holding in 1966, which held that defamation law is necessary to protect “the essential dignity” of “every human being.” The later seminal work of Robert Post cemented it. Seemingly unrelated, scholars of defamation law have found its structure mystifying, claiming for decades that it is “full of anomalies and absurdities.” This Article argues that the two positions are connected. The problem lies not so much in the law but in our perspective.

Dignity, while truly important to human flourishing, cannot function as defamation’s linchpin because it is, at bottom, an individualistic concept, while defamation is a social tort through and through. Defamation law cares not just about the harm to the individual but also about the value of speech, its publication, and its effects on the opinions of members of the public. The discontent with doctrine is but one symptom of the problem. The dignity turn has also had unintended harmful consequences, mystifying and perpetuating the use of defamation law to enact racial and sexist social hierarchies.

In contrast, this Article argues that defamation law protects the legitimate pursuit of status. Drawing on rich sociological theory dating back to Weber and Veblen, the Article constructs an understanding of status as it applies to the law. This interpretation has a surprisingly tight explanatory fit with defamation doctrine, offering clarity in an area notorious for its opaqueness. Such clarity is urgent given the strong calls for reform that reverberate across the entire political spectrum. This thesis also provides a firm normative perch from which to reevaluate defamation law. A status understanding decloaks the judicial role, exposes what judges truly do when they decide cases, and unveils a normative outlook for future decision-making.

From President Biden to the Chair of the Federal Trade Commission, there is dramatic new attention to the overlap between data privacy and competition. Our personal data now fuels the online world, from search and social media to applications and algorithms. While privacy law limits the processing of such data, antitrust law often encourages it to drive online competition. This is creating new interactions—and tensions—between these powerful areas of law.

This Article argues that antitrust law has been too singular in its treatment of data privacy. Antitrust scholars, courts, and agencies cast data privacy the same way across this variety of new interactions: as a quality-like factor that rises and falls with competition. Yet privacy is notoriously pluralistic in its identity. No single definition of data privacy has coalesced in the law, nor is a unitary conception likely to emerge. The Article contends that the cramped antitrust view of data privacy is a significant problem. It leads courts and lawmakers to unexamined preferences for competition over data privacy, which can threaten the already-fragile recognition of harms within privacy law itself.

In particular, the Article explores two seismic shifts underway in U.S. data privacy law—i) the move away from notice and consent toward more prohibitions and duties, and ii) the proliferation of privacy rights. These changes erode the basis on which antitrust reconciles data privacy: a previously-shared assumption that consumers benefit from personal data-driven competition. As a result, these shifts are creating new variety and complexity in how antitrust and privacy law interact.

It argues these changes will press antitrust to develop more pluralistic thinking of what privacy is to antitrust law. The Article proposes a number of important ways in which antitrust can begin to do this, both institutionally and substantively. In particular, it draws analogies to antitrust theory on other incommensurate interests, such as patent rights, free speech rights, and regulation, that, like privacy, can require theories of exception and conflict where they meet antitrust law.

Half a century ago, the legal doctrine of informed consent was presumably transformed in order to enshrine the ethical goals of ensuring autonomous, voluntary, and informed decision- making in medicine into law. The reasonable patient standard introduced in Canterbury v. Spence and Cobbs v. Grant sought to center the patient by requiring that the physician disclose all information that a reasonable person in the patient’s position would consider material to her decision-making. However, those efforts, while laudable, have proven inadequate to achieving the ethical principles they were intended to achieve.

The legal doctrine of informed consent’s focus on the adequacy of physician disclosures— both in documents and conversations—emphasizes ritual over relationships. It has proven to be both needlessly adversarial and backward-looking, leading physicians to assume more disclosure is better for the purposes of preventing liability. In effect, the law’s onerous legal requirements necessitate overdisclosure at the expense of patient understanding, rendering it ineffective at actually informing voluntary decision-making. The objective reasonable person standard has proven inadequate in shifting the emphasis from physician disclosure to patient comprehension.

This Article introduces a new element to an informed consent claim: subjective patient understanding of the risks, benefits, and alternatives of the proposed intervention. This proposal transforms the standard for informed consent to emphasize patient comprehension and consent rather than solely focusing on physician disclosure in order to ensure the lofty ethical goals of clinical informed consent.

Traffic tickets can be big business for government. Every year, traffic tickets generate hundreds of millions, if not billions, of dollars in revenue for state and local governments nationwide. That revenue is then allocated to support a wide variety of government programs, some of which have nothing to do with traffic violations. The burdens of financial penalties in traffic cases (including base fines, court costs and fees, and surcharges) fall disproportionately on the most financially vulnerable individuals and communities, including low-income people and overpoliced communities of color.

The main contribution of this Article is that it sketches core elements of a more just and equitable legal framework to guide traffic penalty systems. As explained, current traffic penalty systems rest on a false choice between fines and incarceration—namely, that fines are a necessary and practical alternative to avoid the social costs of incarceration for violations of minor traffic regulations. The proposed framework in this Article moves beyond this false choice to provide a different normative vision of when and how governments may impose financial penalties for traffic violations and how governments may allocate and use traffic penalty revenue. The framework is organized along six dimensions: (1) the types of allowable financial penalties for traffic violations, (2) how to calculate financial penalties imposed, (3) when financial penalties for traffic violations may be imposed, (4) the proper allocation and use of traffic penalty revenue, (5) the treatment of individuals with limited financial means to pay, and (6) transparency and accountability measures.

This Article provides a comprehensive analysis of important criminal-justice-related and transportation-related benefits of reimagining traffic fine and fee systems in ways that align with the proposed framework. Those benefits include reducing the criminalization of poverty and the net-widening of the criminal justice system through traffic enforcement, aligning traffic penalties with the realities of overregulation and selective and discriminatory traffic enforcement, combating government incentives for revenue generation through traffic enforcement, complementing and strengthening traffic policing reforms, and improving considerations of racial and class equity in transportation law and policy. This Article concludes by addressing potential objections to the proposed framework.

This Note navigates the complex relationship between the U.S. legal system and Islamic law, particularly focusing on the challenges faced by U.S. courts. Examining judicial struggles in applying Islamic law, it critiques the limitations of expert witnesses and proposals for reform by legal scholars. Three prominent proposals—Peter W. Beauchamp’s hands-off approach, Eun-Jung Katherine Kim’s tiered system, and Eugene Volokh’s endorsement of existing legal provisions—are analyzed in their efficacy in incorporating Islamic law into U.S. legal proceedings. The Note provides an alternative: the establishment of a Muslim Arbitration Tribunal (MAT) within the U.S. legal framework. Drawing on successful models like the Beth Din in the Jewish community, it argues that a MAT, staffed by arbiters versed in both U.S. and Islamic law, could provide a nuanced approach to disputes involving Islamic principles. Historical, statutory, and Islamic support for religious tribunals in the U.S. is discussed, dispelling fears of potential conflicts with secular state-run courts. Highlighting the United States as an ideal site for a MAT, this Note emphasizes the diversity and educational resources available for future arbiters. It explores past calls for a MAT and underscores the nation’s unique demographic and cultural context, positioning it as more adaptable than other countries. The benefits of a MAT, including its potential to relieve pressure on civil courts and provide a forum for nuanced religious concerns, are outlined. To address concerns, the Note proposes protective measures for individual liberties within the MAT framework, including the right to appeal, considerations for public policy, and an unconscionability standard. It concludes by underscoring the necessity of a MAT in the United States, asserting its potential to issue judgments while upholding fairness, equality, and justice within a multicultural framework.