Media Mentions

“The danger of this type of case is that a court might be drawn, by the artistic nature of the product at issue, to favor 1st Amendment and artistic expression concerns over consumer protection concerns,” said Ted Mermin, executive director of the Berkeley Center for Consumer Law & Economic Justice. “But on a common sense level, [we] know that if we are buying an album that is marketed as being the songs of Michael Jackson, it had better have the songs of Michael Jackson.”

David A. Carrillo, executive director of the California Constitution Center, says diversifying the court first became a priority under former Gov. Jerry Brown in the 1970s. “Doing so is crucial to both the perception and the reality that those who administer justice reflect the state’s diversity,” Carrillo says. “The judge in my case doesn’t have to look like me, but it shouldn’t be true that there are no judges who look like me.”

Dean Erwin Chemerinsky and California Constitution Center Executive Director David Carrillo discuss the nomination. “This is two-sevenths of the California Supreme Court, and these are people who are going to be there for a long time,” Chemerinsky says. “They are historic and important appointments.” Guerrero’s appointment also makes sense politically, Carrillo says, as appointing the first Latina chief justice “speaks directly to the nearly 40% of the California population with Hispanic ancestry.”

Fractional trading brokerages like Robinhood, meanwhile, are “a fly in the ointment,” to Buffett, says Professor Robert Bartlett, who co-authored a new study finding volumes of the most expensive stock in the U.S. have been artificially inflated by the way brokers like Robinhood report fractional trading. “Buffett wants to keep the price of his Class A shares high to attract long-term value investors. Those aren’t the people buying these fractional shares, and so they are undermining his main vision for the stock.”

“One thing that might have triggered this wave of litigation is that cities have become aware in the past 15 years that climate change is costing them money,” Professor Holly Doremus says. “That’s especially true for coastal cities, counties and states, where a lot of these cases are coming from. I think just looking for any way to deal with this problem has sent them to the state courts.”

Ethan Elkind, director of the Climate Program at the Center for Law, Energy & the Environment, discusses the challenges for California’s planned route from San Francisco to Los Angeles. 

“If there is a stable source of funding both for wildfire and EVs, then you create the ability to plan in a more profound way,” says Ken Alex, director of Project Climate at the Center for Law, Energy & the Environment, of the debate over Proposition 30, which would  raise income taxes on people earning more than $2 million a year to fund zero-emission vehicle purchases and infrastructure.

Dean Erwin Chemerinsky discusses Gorsuch’s role in closely-divided cases this term. 

California Constitution Center Executive Director David Carrillo is among those quoted to analyze Gov. Gavin Newsom’s next move. Elevating a sitting justice gives the governor “the appearance of making two appointments: one to elevate a new Chief Justice, and one to fill the vacated seat,” Carrillo says.

“In recent years the California Supreme Court has coalesced into a group of moderate justices who decide nearly 90% of their cases unanimously, and Chief Justice Cantil-Sakauye’s retirement may be an inflection point for that dynamic,” California Constitution Center Executive Director David Carrillo says. “So one factor in choosing a new Chief Justice is how likely that person is to continue the court’s current consensus culture.”

Ethan Elkind, director of the Climate Program at the Center for Law, Energy and the Environment, says it’s safe to assume that the historic commute patterns likely will never fully return to what they were before the pandemic, so transit providers will need to find other ways to attract more riders. “I think it’s going to be really hard to get back to that level of ridership unless you grow the overall pie,” he says. “Their best strategy is making sure there are more apartments and office buildings right next to transit. If people live really close to a transit stop they’re going to be much more likely to ride that to get where they want to go for recreational activities or for work.”

The authors of the Constitution “believed the Bill of Rights wasn’t creating rights but was recognizing rights that were already out there,” says Professor Daniel Farber, author of Retained by the People, a 2007 book about the Ninth Amendment. The current court’s majority “has basically ignored” that amendment, he says, most likely because “it looks like a wide-open invitation and it doesn’t really say anything about how you decide what’s covered.”

“It’s said that a society is measured by how we treat the worst among us, the most marginalized, the most despised,” Death Penalty Clinic Co-Director Elisabeth Semel tells columnist Nicholas Goldberg. “The law applies to everybody. We don’t get to pick and choose.” 

The best efforts standard is vague and can be difficult to gauge, Professor Adam Badawi says, and establishing that someone has breached a best efforts obligation requires pretty extreme conduct. “You can’t hook someone up to a machine and figure out how much they’re trying,” he says. 

“This data tracking is…it means that people who are pregnant and seeking access to medical care (are) extraordinarily vulnerable to having their data sold to vigilantes as well as provided voluntarily to law enforcement or obtained by law enforcement across state lines,” Professor Rebecca Wexler, a  co-faculty director of the Berkeley Center for Law & Technology, told the U.S. House Judiciary Committee.

On July 12, Professor Khiara M. Bridges testified before the U.S. Senate Judiciary Committee about the fallout from the U.S. Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health, which overturned the 1973 Roe v. Wade ruling. Bridges’ exchanges with several senators, particularly Missouri Republican Sen. Josh Hawley, drew extensive media coverage. 

“It’s unclear where the court is going to draw the line,” Dean Erwin Chemerinsky says of states’ efforts to enact new regulations. “I think there’s a strong argument that all of these are constitutional. There’s also going to be an argument that they are unconstitutional. I think it’s important to adopt the laws and then see where the court is going to draw the line.”

“It’s up to states, really, as to how they want to go about making abortion unacceptable,” Professor Khiara M. Bridges says, predicting the argument over whether the federal government can protect access to abortion pills, particularly mifepristone, “a long-term battle.” 

“The argument for settling at something lower is that litigation is expensive,” Professor Adam Badawi says of Musk’s effort to back out of his $44 billion deal to buy the social media network. “And this thing is so messy that it might not be worth it.”

“The working class people have been pushed outside L.A. because the region hasn’t built enough housing for them,” says Ethan Elkind, director of the climate program at the Center for Law, Energy & the Environment, and author of the book Railtown. He and other critics say that while the region has spent billions on rail, it has shot itself in the foot by not reforming its zoning laws and allowing high-density housing to be built near transit hubs while still requiring new apartment developments to build parking spaces for all residents. 

Adam Sterling, executive director of the Berkeley Center for Law and Business, predicts an eventual court settlement that allows both sides to save face. “Twitter has an obligation to fight Musk on this, which they’d need to do because they have a fiduciary duty to do what’s best for shareholders and salvage the deal,” he says. 

Lecturer Shanin Specter, who won many of the pre-pandemic verdicts against Johnson & Johnson, cautions against assuming jurors’ mindsets have shifted. “Our experience was that good cases were bringing good verdicts, and bad cases were bringing bad verdicts,” he says. “I see absolutely no between the juries now or during the pandemic, or before the pandemic.”

Dean Erwin Chemerinsky and Professor Daniel Farber discuss the potential impact of the West Virginia v. EPA ruling. The ruling “is very vague about what is a major question or what is sufficient specificity to meet it, the court has opened the door to challenges to countless agency actions,” Chemerinsky says. “I think his fundamental objection is, EPA is leveraging a tiny pedal (of regulatory authority) in the Clean Air Act and using it to take over the world,” Farber says of Chief Justice John Roberts’ opinion. “It goes beyond the role that Congress gave them in dealing with emissions from specific sources into trying to change the whole energy system.”

Professor Jonathan Simon says there’s no easy way for Jenkins to make a quick impact on crime, or even to significantly affect the jail population. “I think most of the rapid change is what we’ve already gotten: a big change in tone and lots of reminders of the things her predecessor was alleged to have done wrong,” he says. 

Professor Daniel Farber calls the Supreme Court’s ruling “more than a flesh wound” but not fatal. The majority opinion still allows the EPA other options to regulate coal-fired power plants, he adds. “Some people are portraying it as a huge disaster; I don’t think it’s as bad as that,” he says. “It’s a serious setback, but it’s one that we can move past.”

“It’s so disingenuous to say that we’re just going to allow political majorities in the state to determine the legality of abortion when not everybody in the state is going to be able to vote because of what Republicans are doing and because of what the Court is allowing them to do,” Professor Khiara M. Bridges says. “Our democracy is undeserving of that label.”

Megan Graham, of the Samuelson Law, Technology & Public Policy Clinic, says any battle between the tech companies and governments about data collection should be done in public, so that regular people and privacy advocates can have their say. “Google’s voice is obviously important in the discussion because they have the data and they are the ones running he searches but their interests are not necessarily the same as the general public, or people who are concerned about privacy rights,” she says. 

Professor Daniel Farber says the Supreme Court’s decision in West Virginia v. EPA, which holds that the agency doesn’t have broad authority under the Clean Air Act to regulate greenhouse gas emissions from power plants, is a hit to the fight against climate change but doesn’t completely tie the Biden administration’s hands. California’s strong laws will shield the state from much of the ruling’s impact, although the state does get electricity from affected states, he says. 

“We live our lives online, we leave digital breadcrumbs of our prior activities, and of course those are going to be caught up in abortion investigations,” says Professor Catherine Crump, director of the Samuelson Law, Technology and Public Policy Clinic. Tech companies will almost certainly comply with state law and hand over information from legal court orders, but they should be transparent with their users and the public when they do and disclose how many abortion-related court orders they get, she adds.

In a time of concern about a rise in retail theft, some politicians are seizing on viral videos to paint left-leaning city leaders as soft on crime. “These crimes deserve to be taken seriously, but they are also being weaponized ahead of the midterm elections,” Professor Jonathan Simon says. 

“If you have a period tracking app, you should delete it,” says Professor Catherine Crump, director of the Samuelson Law, Technology & Policy Clinic. “Tech companies like everyone else has to comply with law and they may not have a choice about what data they collect, what data they are forced to disclose. The law enforcement agency gets a warrant and serves it on Google and asks for location information and it’s a valid warrant. Google is going to have a hard time not complying with that.”

Professor Rebecca Wexler, a faculty co-director of the Berkeley Center for Law & Technology, talks about how big and small tech companies will need to have a response to the question of what to do with users’ data if new laws try to restrict access to information about abortion and other reproductive services in the post-Roe environment. “Anything they do or don’t do, it’s going to be a choice with consequences. It also means they’ve got a lot of power at this point,” she says. “They have power to reclaim some of the privacy from government intrusion that Roe once guaranteed, and that the court has just eviscerated.”

Dean Erwin Chemerinsky discusses John Eastman, whom he has publicly urged the State Bar of California to investigate because of his activities after the 2020 presidential election. Chemerinsky debated Eastman on a radio show for years but says his last appearance with him, in October 2020, still disturbed him more than a year later. “It was the first time I ever debated him where he wasn’t civil. I felt like I was debating Donald Trump,” he says.

Dean Erwin Chemerinsky says said that while the right to travel, including to get an abortion, is protected, he expects conservative states will pass laws that try to prohibit women from leaving in order to get an abortion. “That should be unconstitutional, but we’ll see what the court does,” he says.

Professor Khiara M. Bridges talks about the racial dynamics of the fight over abortion, and how they shaped the events that led to the recent overturning of Roe v. Wade. 

“The decisions this week must be understood as a conservative majority favoring conservative political ideology: requiring aid for religious instruction, greatly expanding gun rights, ending abortion rights,” Dean Erwin Chemerinsky says. “It is not about judicial philosophy or constitutional interpretation. It is about conservatives moving constitutional law very far and very fast in a very conservative direction.”

Professor Khiara M. Bridges says the Supreme Court’s decision to overturn Roe v. Wade presents an imperative for California to “be on the offensive” but putting additional money and effort into ensuring its residents, and those coming from the outside to receive care, can access contraceptives and abortion services. “When you have a law that makes abortion unavailable, you have a law that makes unavailable a service upon which Black people disproportionately rely, so there’s a specific racial impact,” she says, noting that Black people have not only higher rates of unintended pregnancy but also higher rates of maternal mortality and morbidity.

“There’s an open legal question about whether states could limit the use of mifepristone in light of the FDA’s judgment that the medicine is safe and effective. It’s not at all clear,” Professor Khiara M. Bridges says. “States can regulate the practice of medicine within their borders.”

The Supreme Court’s reversal of Roe v. Wade decision raises a host of thorny legal issues for pregnant people, healthcare providers, and state governments, Professor Khiara M. Bridges says. “We are going to see an abundance of lawsuits for the next 10 years, if not longer, around what states can and cannot do to regulate abortion,” she says. “It’s complicated. There aren’t easy answers, and there’s a lot of uncertainty.”

Professor Khiara M. Bridges says the Supreme Court’s recent decisions have sent a message to conservative state lawmakers that it won’t stand in the way of laws restricting birth control methods. “It’s all of the implications of the Dobbs decision that make us reasonable to be fearful about the accessibility of contraception in the future,” she says. 

California’s strict gun laws could be affected by the U.S. Supreme Court’s recent ruling striking down a New York law. The new test outlined in the New York State Rifle & Pistol Association v. Bruen case “potentially has long-term implications for California’s other gun laws,” California Constitution Center Executive Director David Carrillo says. 

One reason the case is so important to airlines is that they are likely to get a more pro-business outcome in the Supreme Court than with California’s lawmakers, Professor Catherine Fisk says. “The usual way of dealing with a policy disagreement is to get the legislature to enact a law,” she says. “What’s significant here is apparently the airlines couldn’t persuade the California legislature.”

Even before Roe was decided in 1973, the California Supreme Court held in 1969 that women have a fundamental right to choose whether to have children based on a right of privacy or liberty in matters related to marriage, family and sex. “The court did this interpreting ‘liberty’ in the California Constitution, just as the U.S. Supreme Court did four years later in Roe vs. Wade,” Dean Erwin Chemerinsky says. 

In a 6-3 ruling in the Vega v. Tekoh case, the Supreme Court held the only remedy for a Miranda violation is to block the use in court of a suspect’s incriminating comments. Professor Charles Weisselberg says he fears the decision gives police an incentive to pressure people who refuse to talk. “There will be no penalty for violating Miranda in this way,” he says. “There will be zero incentive for officers to cease questioning.”

Professor David Oppenheimer, faculty director of the Berkeley Center on Comparative Equality & Anti-Discrimination Law, says the lawsuit was the “largest verdict in an individual race discrimination in employment case.”

California Constitution Center Executive Director David Carrillo discusses SCA10, which Democratic state leaders are trying to get on to the November ballot to codify abortion rights in the state. “If courts are interpreting away abortion rights at the federal level, there is the same risk a California court could interpret away California abortion rights, because SCA10 doesn’t specify what they are,” Carrillo said.

Professor Catherine Fisk says “illustrates how the companies get all the benefits of wage and price control that they would have if drivers were employees while none of the responsibility.”

Professor Frank Partnoy discusses why he helped start the nonpartisan, nonprofit International Institute of Law and Finance, which promotes academic research with an eye on influencing government agency rulemaking. “There’s a gap in terms of academics connecting with policymakers,” he says. 

International Human Rights Clinic Co-Director Roxanna Altholz discusses the sentencing of energy executive Roberto David Castillo in Honduras for arranging the 2016 murder of environmental activist Berta Cáceres.