BEYOND #FREEBRITNEY: AN ANALYSIS OF THE IMPACT OF AB 1194 ON PROFESSIONAL FIDUCIARIES, THE ROLE OF COURT-APPOINTED COUNSEL, AND COURT OVERSIGHT REQUIREMENTS

This article analyzes the impact of California Assembly Bill No. 1194 (AB 1194) on professional fiduciaries and court-appointed counsel and posits funding issues as a barrier to achieving the goals set out by AB 1194 and prior conservatorship law reforms. This article proposes numerous changes to AB 1194, including incentivizing rather than solely penalizing professional fiduciaries, adopting a midway standard between zealous advocacy and the best interests standard for court-appointed counsel, and development of a coherent funding plan. AB 1194 was adopted largely in response to media movements such as #FreeBritney, the movement which called for an end to the conservatorship of Britney Spears. #FreeBritney, however, resulted in no studies to quantify abuse in the context of conservatorships, and the legislative history of the resulting bill cites small-sample, niche, or fictional accounts of abuse in support. Articles analyzing AB 1194 specifically are similarly few and far between. In practice, AB 1194 poses significant problems that undermine its goal of protecting the elderly and incapacitated. As currently written, AB 1194 risks triggering a mass exodus of professional fiduciaries from conservatorship work. Scarcity of professional fiduciaries will disadvantage conservatees because professional fiduciaries offer neutrality and experience in handling complex conservatorships. AB 1194 additionally requires zealous advocacy of court- appointed counsel, codifying one side of a longstanding debate between the zealous advocacy and the best interests of the conservatee standard for court-appointed counsel. However, zealous advocacy is impractical in certain situations, and in others, places the conservatee in danger. Further, the Legislature has not made clear how much funding is necessary to accomplish the mandates of AB 1194, nor is it clear where the funding will come from. Without a coherent fiscal plan, AB 1194 will not achieve its goal of protecting the elderly. With the population of elderly individuals in California estimated to expand rapidly in the coming years, it is necessary that California adopt data-driven conservatorship legislation that creates, supports, and funds a protective conservatorship system

SKINNY LABELS: CHANGING SCENARIO OF INDUCED INFRINGEMENT AND PUBLIC POLICY

A patent is an exclusive right granted for an invention to the inventor. However, when it comes to life-sustaining products, these exclusive rights have a negative impact on people’s lives. The government has tried to develop initiatives, such as the Hatch-Waxman Act, to compensate and speed up the entry of affordable medicines into the market. But when one patent addressing one medical condition (indication) blocks the entry of the generic, the use of skinny labels makes it possible for the generic players to carve out the label and enter the market only with indications that are off-patent. This helps bring these unaffordable medical products within reach of the common person who could not otherwise afford them. This note will examine how the generic players navigate the drug approval system, the strategies of the innovators to ward off competition, and the public policy surrounding the availability of affordable medical products. It will also discuss the impact and implications of skinny labels on the market entry of affordable life- sustaining products and the landmark case that is changing the scenario altogether. Finally, this note will propose possible alternative methods to increase the affordability and availability of life-sustaining products by making it a win-win situation for innovators, generics, and the public

TECHNOLOGY, TINKER, AND THE DIGITAL SCHOOLHOUSE

The world, both inside and outside the schoolhouse, has changed considerably since the Supreme Court decided Tinker v. Des Moines in 1969. Education in much of the United States is now inextricably linked with technology, and the schoolhouse is, increasingly, digital. This article critically examines the impact of the increasing use of technology on students’ First Amendment rights, looking at the Supreme Court’s recent decision in Mahanoy v. B.L. Specifically, it examines the effect of allowing schools to restrict speech on school-issued devices. Disciplining speech that takes place on school-issued devices will have a silencing effect on students who do not have access to personal devices. These students, who often come from low- income homes and are disproportionately likely to be students of color, use school-issued devices to engage in speech. This speech is not only more likely to be monitored by school officials, but also more likely to be restricted and silenced while their peers remain free to engage in identical speech on personal devices. Importantly, consideration of device ownership is unnecessary as it does not speak to whether a student’s speech causes a “substantial disruption” or otherwise speak to the impact on the school community. Additionally, it erodes parental rights by impermissibly extending the reach of school authority into homes and other areas traditionally reserved for parental control. Any barrier to speech that disproportionately affects a subset of already disenfranchised students and families is antithetical to the very ideals the Supreme Court has consistently upheld. Therefore, this article argues that this factor must be removed from the analysis

RELYING ON UNRELIABLE TECH: UNCHECKED POLICE USE OF ALGORITHMIC TECHNOLOGIES

In the past two decades, police forces have come to rely on algorithm-based technologies for investigative leads. Several of these technologies are unreliable. They are prone to error, misidentifying suspects, and crimes. When relied upon, they lead to false arrests and unnecessary stop-and-frisks. Yet, there is no coercive mechanism, either regulatory or judicial, that meaningfully governs the use of these algorithmic technologies in law enforcement. As a result, law enforcement agencies are free to disregard potential errors and deploy emerging technologies against communities with little recourse. This Article looks closely at three technologies—ShotSpotter gunshot detection, facial recognition technology, and rapid DNA machines—to illuminate reliability issues common to privately-held algorithmic technologies and exacerbated by police misuse. Law enforcement agencies fail to screen technologies before using them to support individualized suspicion for searches and seizures. Thus, the police end up targeting criminal defendants based on unreliable information. But the Fourth Amendment does not meaningfully provide defendants with an avenue to challenge the reliability of technologies used to develop probable cause and reasonable suspicion. Extrajudicial regulation is needed to ensure that the technologies used by law enforcement are reliable. If law enforcement agencies continue to deploy unreliable technologies, courts should suppress evidence stemming from their use

ESG INVESTING: GOVERNMENT PUSH OR MARKET PULL?

This Article documents various government actions driving the Environmental, Social, and Governance (ESG) movement to offer perspective on the debate regarding whether markets or governments propel ESG. These include mandating an energy transition; promulgating laws, rules, and directives compelling ESG reporting; and providing generous tax incentives and financial subsidies. We document the government push for ESG in the United States, Europe, and other Organisation for Economic Co-operation and Development (OECD) nations, and by international financial institutions. We do not deny that many investors across the globe are interested in ESG as opposed to only private returns. However, the breadth and depth of government action are clearly pushing more investors into ESG. We distinguish between market pull and government push as drivers of the ESG boom by documenting the laws, regulations, mandates, tax credits, and subsidies enacted by governments across North America and Europe. We do not attempt to resolve causality between investor sentiment and government action; our catalog may prove useful in a future attempt to address, statistically, causality. The extensive breadth and depth of government laws and rules suggest that government push is perhaps the more likely driver of the boom

COUNTERTERRORISM USES OF FORCE: THE LAWS OF WAR AND JUS AD VIM

Al Qaeda’s terror attacks against the United States on September 11, 2001, introduced heretofore unseen issues under International Humanitarian Law. After Al-Qaeda’s attacks, the Bush administration began its Global War on Terror by invading Afghanistan in order to find those responsible for the attacks on September 11, 20001. This invasion caused Al-Qaeda to flee into Pakistan’s Tribal Areas in order to evade American forces. The Bush administration began employing drone strikes in Pakistan’s Tribal Areas to degrade Al-Qaeda’s ability to conduct operations against the United States. The Obama administration continued and expanded the use of drone strikes. Amid the use of these strikes was the growing international backlash against excessive civilian casualties. In response, the Obama administration argued that these strikes were justified because of the Unwilling or Unable Doctrine. In this article, the first section provides a background on the Laws of War, the development of drones and drone strikes, a discussion of the Unwilling or Unable Doctrine and the jus ad vim approach to the use of force under international law. The next section compares the Unwilling or Unable Doctrine to the jus ad vim approach. The article concludes with the proposition that the jus ad vim framework is not an adequate body of law to tackle the complexity of issues embedded in the use of drone strikes

IN EVENT OF AN (AI) EMERGENCY: INTERPRETING CONTINUITY OF GOVERNMENT PROVISIONS IN STATE CONSTITUTIONS

“Of this I am certain: If we prepare ourselves so that a terrible attack—although it might hurt us—could not destroy us, then such an attack will never come.” - Edward Teller, the “Father of the Hydrogen Bomb,” in an interview with Allen Brown of This Week Magazine in 1957. Bad actors have already used or may soon use AI to disrupt critical infrastructure, influence elections, and upend economies. Those most concerned about the risks posed by AI argue that it is a matter of when and not if state governments will have to respond to threatened or realized acts of AI aggression. Though a litany of scholars have examined the powers governors may use in emergency situations, less attention has been paid to the role of state legislatures in responding to destabilizing events. Scholars have justified their focus on governors for practical reasons—the executive branch of state governments has been deemed the “the center of governmental response[s]” to public emergencies. Two trends caution against perpetuating neglect of state legislatures. First, the legal and social bases for governors to take sweeping action in response to emergencies eroded in many states during COVID-19. In turn, many state legislatures, by law, by popular support, or both, have amassed more authority to respond in worst-case scenarios. Second, the likelihood of states being thrown into disarray will only increase as AI evolves and spreads; thus, warranting a closer analysis of what powers state legislatures may exercise to restore normalcy. Thirty-five state constitutions contain variants of a template “Continuity of Government” (CoG) provision promulgated by the federal government at the height of the Cold War. What events may trigger these provisions, as well as what powers they afford to state legislatures, has evaded judicial scrutiny as a result of state legislatures rarely invoking the relevant provision. It follows that the scholarly analysis of how best to interpret these important provisions should occur in the relative tranquility of the present rather than at the height of a calamity. This preemptive analysis may improve the ability of state legislatures to respond to disorder by clarifying the likely scope and duration of their powers and, ideally, by spurring amendments to clarify the provisions in advance of any such event. This paper serves as one (and, likely, the first) entry in an inquiry that merits immediate and robust scholarly attention. Relying on the framework set forth by the New Haven School of Jurisprudence, this paper resolves one of the most consequential ambiguities contained in CoG provisions. This framework deserves special consideration given its inclusion of myriad disciplines and its characterization as an “explicitly policy-oriented jurisprudence.” Scholars from across the legal profession have a role in contributing to this inquiry. The incorporation of AI into legal practice imposes a responsibility on scholars to anticipate how the technology may require new doctrines, laws, and methods of interpretation. Though this paper focuses on the continuation of state governments in the wake of an AI emergency, related inquiries such as how to rethink contract law, property law, and the like upon such an emergency demand more scholarly attention. The exploration of those topics can, in turn, inform what sorts of powers state legislatures may need to exercise and for how long