UCLA Law Review Volume 52, Issue 4


Unhappy Cows and Unfair Competition: Using Unfair Competition Laws to Fight Farm Animal Abuse

Most farm animals suffer for the entirety of their lives, both on the farm and at the slaughterhouse. While there are state and federal laws designed to protect these animals from abuse, such laws are rarely enforced by the public officials who have the authority to do so. Animal advocacy groups have taken matters into their own hands by utilizing state unfair competition laws, including California Business and Professions Code section 17200. Section 17200 is a state version of the Federal Trade Commission Act, which prohibits unfair and deceptive business practices. Such “Little FTC Acts” exist in every state and are, for the most part, very similar. Thus, while this Comment focuses on section 17200, its reasoning is applicable to other states as well. This Comment explores the many ways in which unfair competition laws, namely section 17200, may be employed to protect farm animals. The passage of Proposition 64 by California voters in November 2004, which added a standing requirement for section 17200 plaintiffs, has curtailed the scope of the statute significantly. This Comment argues, however, that section 17200 can still be used to protect farm animals, through the use of humane competitors and individual consumers as plaintiffs.

Unequal Protection and the Racial Privacy Initiative

Advocates of colorblindness doctrine argue that the time has come to look beyond racial categories. In October 2003, Californians voted against an initiative premised on the idea that eliminating the state’s power to collect racial data would further the advancement of equality. This Comment proposes that even if the initiative is recast in revised form and wins a majority of California’s popular vote, it may not withstand a constitutional challenge based on the Equal Protection Clause of the Fourteenth Amendment.

Conservative Lawyers and the Contest Over the Meaning of "Public Interest Law"

This Article examines how conservative and libertarian lawyers created a field of legal advocacy organizations in the image of public interest organizations of the political left and how they adapted the model and rhetoric of public interest law practice to serve different political ends. As conservatives developed a cadre of competent and committed advocates and deployed nonprofit legal advocacy organizations on behalf of their own visions of the public interest, they modified the conventions of this unconventional form of politics.

Reconciling Data Privacy and the First Amendment

This Article challenges the First Amendment critique of data privacy regulation – the claim that data privacy rules restrict the dissemination of truthful information and thus violate the First Amendment. The critique, which is ascendant in privacy discourse, warps legislative and judicial processes and threatens the constitutionalization of information policy. The First Amendment critique should be rejected for three reasons. First, it mistakenly equates privacy regulation with speech regulation. Building on scholarship examining the boundaries of First Amendment protection, this Article suggests that “speech restrictions” in a wide variety of commercial contexts have never triggered heightened First Amendment scrutiny, refuting the claim that all information flow regulations fall within the First Amendment. Second, the critique inaccurately describes current First Amendment doctrine. To demonstrate this point, this Article divides regulations of information flows into four analytic categories and demonstrates how, in each category, ordinary doctrinal tools can be used to uphold the constitutionality of consumer privacy rules. Third, the critique is normatively unpersuasive. Relying on recent intellectual histories of American constitutional law, this Article argues that fundamental jurisprudential reasons counsel against acceptance of the First Amendment critique. From the perspective of privacy law, there are striking parallels between the critique’s advocacy of “freedom of information” and the discredited “freedom of contract” regime of Lochner. More importantly, from the perspective of First Amendment law, the critique threatens to obliterate the distinction between economic and political rights at the core of post-New Deal constitutionalism. Rejecting the First Amendment critique thus has real advantages. At the level of policy, it preserves the ability of legislatures to develop information policy in a nuanced way. And at the level of theory, it preserves the basic dualism upon which the modern edifice of rights jurisprudence is built.

A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners

Although the Free Exercise Clause prohibits governmental interference with religion, American Indians have been unsuccessful in challenging government actions that harm tribal sacred sites located on federal public lands. The First Amendment dimensions of these cases have been well studied by scholars, but this Article contends that it is also important to analyze them through a property law lens. Indeed, the Supreme Court has treated the federal government’s ownership of public lands as a basis for denying Indian religious freedoms claims. This Article contends that such holdings rely on an “ownership model” of property law wherein the rights of the owner trump all other interests and values. As scholars have argued, however, the ownership model represents a view of property law that is neither descriptively accurate nor normatively attractive. In theory and practice, property law also recognizes the rights of nonowners in furtherance of human values and social relations. Accordingly, this Article contends that, even as nonowners, Indians may have enforceable property rights to use, and maintain the physical integrity of, sacred sites. Examining sacred sites problems through common law, federal Indian law, public lands law, and human rights law, the Article identifies and analyzes property rights arguments that may be available to Indian litigants even where the government is the undisputed owner of the land. While this approach will not secure Indian religious freedoms in every case, the Article concludes that Indian nations should consider property rights arguments as part of a multipronged legal strategy in sacred sites cases.

Conservative Reformation, Popularization, and the Lessons of Reading Criminal Justice as Constitutional Law

Legal scholars tend to segregate the Supreme Court’s criminal justice cases from the rest of the Court’s constitutional jurisprudence. Leading accounts of the Rehnquist Court, for instance, understandably will focus on the Court’s noteworthy work in federalism, national power, race, and religion, while scarcely making even passing mention of the Court’s work in criminal justice. The consequence is an incomplete picture of constitutional law that neglects the lessons that might be taken from criminal justice to illuminate our understanding of the Court and its jurisprudence. Criminal justice is an integral component of American constitutional law that needs to be integrated into the narrative of our constitutional times. When we view criminal justice in that spirit, we discover that post-Warren Court criminal justice jurisprudence has been the conceptual, theoretical, and strategic forerunner of the Rehnquist Court’s prominent and groundbreaking activity in federalism, race, religion, and the like. By including criminal justice in the picture, we can recognize with greater clarity that the nation is in a period of conservative constitutional reformation that first began some thirty-five years ago in the criminal justice area. It was there that a distinctive cultural, political, and legal dynamic took shape to support the cause of conservative constitutional law reform. And it was there that the Court developed a distinctive conservative law reform discourse to bring about change in the law. That discourse has since fanned out across the constitutional landscape, bringing about conservative reform in one area after another. Yet even as conservative reformation proceeds in several areas today, it has ended in criminal justice. The forces that inspired the conservative reformation of criminal justice are spent; a social, cultural, and political turn has been reached. Criminal justice has entered a new period of constitutional development that is significantly more liberty affirming than stereotypes of the Rehnquist Court would lead one to expect. The Court’s recent decisions indicate that we have entered a period of popularization in criminal justice, with the development of a new corresponding discourse of popularization to sustain it. What is more, there is reason to think that criminal justice may once again be in the vanguard, and that the distinctive discourse of popularization can and will spread to other areas of constitutional law.