In the News

Mitsuye Endo deserves the Presidential Medal of Freedom

Amanda Tyler writes for The Sacramento Bee, August 25, 2016

In a petition for a writ of habeas corpus, Endo challenged the internment policy as unconstitutional, correctly arguing that the government had no general authority to detain citizens without criminal charges. Notably, her case posed the first and only direct challenge to the internment camps to reach the Supreme Court.

You’re being tracked (and tracked and tracked) on the web

Christopher Hoofnagle quoted by IEEE Spectrum, August 23, 2016

“It’s not so much that I would invest a lot of confidence in the idea that there were X number of trackers on any given site,” Hoofnagle says of the University of Washington team’s results. “Rather, it’s the trend that’s important.”

Trying to turn back the clock on deals gone sour

Steven Davidoff Solomon writes for The New York Times, August 23, 2016

Several such clawback cases over buyouts that were hammered out in the years before the financial crisis but later failed have resulted in thousands of shareholders now fighting to keep the money that was paid out to them.

Lessons from the Viacom dispute

Steven Davidoff Solomon writes for The New York Times, August 22, 2016

Whatever the reason, there is a lesson here for others: remember what your end game is and what is reasonable given your situation. Mr. Dauman never really had an answer to either other than keeping himself in power — and that has not worked so well as the board appeared to back away from supporting him.

How the first liberal Supreme Court in a generation could reshape America

Jonathan Simon quoted by Vox, August 22, 2016

“At the end of the day, the ability of courts to control the level of incarceration is relatively weak compared to legislatures who can change the underlying sentencing structure,” Simon warns. But one thing the Court can do is raise the cost of incarceration by insisting upon prisoners’ rights to humane conditions.

Filling Supreme Court vacancies isn’t a good enough reason to vote for Trump

John Yoo co-writes for Los Angeles Times, August 16, 2016

While he is shaking up the world, Trump will also nominate conservatives to the federal courts — or so he says.  But no one should rely on his vague promises.  He has already flip-flopped on numerous core issues, such as the minimum wage, tax rates and entitlement reform.

Tech giants gobble start-ups in an antitrust blind spot

Steven Davidoff Solomon writes for The New York Times, August 16, 2016

Facebook and its elite brethren will do anything to make sure they are not the next Yahoo or Radio Shack, killed by disruption and failure to innovate. This translates into paying obscene sums for technology that might challenge their dominance one day.

‘Making a Murderer’: Would Brendan Dassey’s conviction have been overturned without the series?

Ramiah Brien quoted by San Francisco Chronicle, August 12, 2016

“My experience with federal judges is that they’re very careful about having outside influences affect their decisions,” attorney and UC Berkeley adjunct law professor Ramiah Brien said. “Especially in a case like this, I don’t think the judge would want the appearance that he was influenced by something other than what the attorneys were arguing in that brief.”

Trump’s company kept two sets of financial numbers, testimony shows

Robert Bartlett quoted by BuzzFeed, August 12, 2016

From a legal perspective, a projection about the future is more opinion than fact, said Robert Bartlett. … “It smells a little fishy,” he said. “If the internal set of books was what they held out to themselves as the true and likely scenario, then that would seem to be circumstantial evidence that the rosy projections were not honestly held projections.”

Want cheaper Internet access? Hand over your privacy

Christopher Hoofnagle quoted by Los Angeles Times, August 9, 2016

“What Comcast is saying is somewhat akin to the water authority offering a discount for less purified water,” Hoofnagle said. “It is time to conceive of broadband as a utility, one that needs to satisfy basic standards for quality, which include freedom from unwarranted surveillance.”

Making pro bono work mandatory for new lawyers

Charles Weisselberg quoted by Voice of San Diego, Sacramento Report, August 5, 2016

“I know that not every lawyer provides pro bono assistance over the course of his or her career,” said Charles Weisselberg, a professor and former associate dean at UC Berkeley School of Law. “But inculcating that value early is important and will, I believe, assist these fledgling lawyers over the course of their careers.”

Loyola Law School report concludes Prop. 66 will invite litigation

Jennifer Moreno quoted in Daily Journal (registration required), August 4, 2016

“Exemption from the APA would eliminate important public involvement in the most serious punishment a state can impose,” Moreno said. “As we’ve seen in other states, when departments of corrections are able to act with little to no transparency, they act careless and risky… and don’t engage in due diligence when making decisions.”

Microsoft, Ireland and a level playing field for U.S. Cloud companies

Paul Schwartz writes for Bloomberg BNA, August 3, 2016

The law now faces the task of clarifying questions about the international reach of a variety of a legal authorities and processes. In so doing, it should maintain a level playing field for U.S. cloud companies who store their data extra-territorially.

UC Berkeley law professors view future of landmark Chevron deference

Eric Biber and Daniel A. Farber quoted by Northern California Record, August 3, 2016

The so-called “Chevron deference … is the concept that if a statute in unclear or ambiguous, courts might defer to an agency’s interpretation of the law,” Eric Biber … told the Northern California Record. … “The argument for deferring to agencies is that they have more expertise than courts. Agencies will have economists and scientists, as well as lawyers and engineers on staff, and judges are just lawyers.”
Farber echoed the opinions of others at the conference when he said the court’s lack of reliance on Chevron deference in King proved its justices are “far more removed” from being accountable within a democratic system.

What the data says about whether Bill Bratton, New York’s outgoing top cop, made the city safer

Franklin Zimring quoted by The Washington Post, August 3, 2016

Franklin Zimring … has argued that Bratton and his lieutenants contributed to making New York City’s streets safer — and that what Zimring calls the “New York model” helped reduce crime in other cities, too.

Years of litigation loom as Redstone casese open a Pandora’s box

Steven Davidoff Solomon writes for The New York Times, August 2, 2016

In both cases, the courts ruled against Viacom’s controlling shareholder — National Amusements — as well as Sumner M. Redstone and his daughter, Shari. Both courts found that the issues raised required a trial to examine whether Mr. Redstone, 93, was competent to remove Philippe P. Dauman and George Abrams from the trust that will control Viacom and CBS on Mr. Redstone’s death or incapacity.

Chemerinsky: Has the Supreme Court dealt a blow to the Fourth Amendment?

Charles Weisselberg cited by ABA Journal, August 2, 2016

Scholars, such as Berkeley Law Professor Charles Weisselberg, reviewed police training with regard to interrogations and documented that officers were instructed as to how to circumvent the Supreme Court’s decision in Miranda v. Arizona. Will officers now be encouraged to engage in illegal stops knowing that if an old arrest warrant is found, then anything found in a subsequent search likely would be admissible as evidence?

Uber may have won the world by ceding China

Steven Davidoff Solomon quoted by San Francisco Chronicle, August 1, 2016

“This gives Uber participation in the upside and a dominant position in the market in China,” said Steven Davidoff Solomon. … “My sense is that Uber shareholders and other investors felt there was more revenue and more growth to be had by combining (with Didi). In China, commerce can be political.”

Amid weed wars, stoned-driving laws still half-baked

Andrea Roth quoted by San Francisco Chronicle, July 30, 2016

“The well-acknowledged truth is that there is no known relationship between THC blood levels and increased relative crash risk,” Roth wrote in a California Law Review paper. If anything, she said, the studies suggest “that drivers with only THC in their blood are not causing a disproportionate number of fatal crashes.”

Prosecuting war criminals in the era of the war on terror

Eric Stover and Alexa Koenig interviewed by KQED-FM, July 29, 2016

Eric Stover: “Before you can have a trial, you actually need to have an accused. So, how do you go after those war crime suspects? And when you look at the post-9/11 environment, going after suspected terrorists, how did the United States conduct that pursuit? And was it illegal?”

Alexa Koenig: “How do you actually muster the political will to have countries aid and search for these individuals, or when they are–as our book is called–hiding in plain sight, when they’re right in front of us? How do you break down the political protections around them to make them vulnerable enough to get them into courts?”