UC Law SF Professors: Legal Issues to Watch in 2023

From regulating cryptocurrency and breaking up big technology companies to restricting abortion rights and protecting pregnant workers, UC Law SF faculty members shared what they think will be the biggest legal issues to watch for in 2023.

Alice Armitage, Professor & Director of Applied Innovation: The regulation of cryptocurrency will be one of the most hotly debated legal issues of the year. 2022 has been a difficult year for crypto, including not only the dramatic loss of the value this past spring but also the public implosion of FTX, one of the largest exchanges on which cryptocurrencies were traded. The result will be increased scrutiny by lawmakers as well as widespread press coverage of the many lawsuits likely to be filed on the basis of these events. To answer this need for legal expertise, legislators and lawyers will have to become highly versed in both the benefits and limitations of cryptocurrency and the technology on which it exists. Regulations and trial outcomes will take years to be finalized. Consequently, I will be broadening the coverage of cryptocurrency and blockchain in my courses on law and technology in 2023 so that our new graduates will be able to hit the ground running on these complicated issues.

Paul Belonick, Professor of Practice; Director, Startup Legal Garage; and Deputy Director, Center for Innovation: It will be very interesting to see if the FTX implosion leads to more calls for cryptocurrency and cryptocurrency exchange regulation, and with what result.  At present, the SEC and other regulatory bodies have been carefully examining crypto exchanges, and this incident will only increase scrutiny. According to several news reports, FTX’s internal books and governance standards were incoherent or non-existent. That’s especially ironic because FTX held itself out as the mediation point between the wild west of unregulated crypto and more traditionally regulated industries. Of course, part of crypto’s attraction has long been its claimed ability to evade government control. But that claim has always been overstated, and we may now see if governments will come in with a heavy hand, and with what success. If Enron gave birth to Sarbanes-Oxley (and it’s the same bankruptcy administrator in FTX’s case!), will the FTX debacle lead to similar legislation? And where will the crypto industry go from there?

Marsha Cohen, The Honorable Raymond L. Sullivan Professor of Law: Post-Dobbs, as numerous states continue to restrict abortion, demand has unsurprisingly increased in neighboring states, putting stress on health care providers and systems. With half of abortions now done using pills rather than surgery, will these states act to increase access by expanding the authority of non-physicians (such as physician assistants, nurses, and pharmacists) to be certified healthcare providers in accordance with FDA requirements for abortion drugs? States acted to make “Plan B” (post-coital emergency contraception) available beyond doctor’s offices before those drugs were allowed to be sold over-the-counter. California’s advanced practice pharmacist designation is a useful model in that profession. Will necessity lead to legislative/regulatory innovations – and will they even more broadly expand health care access, beyond the need for abortion care?

Scott Dodson, James Edgar Hervey Chair in Litigation, Geoffrey C. Hazard Jr. Distinguished Professor of Law, and Director of the Center for Litigation and the Courts: In civil procedure, the biggest issue that will likely be decided next year is whether a state can extract from a corporation consent to general personal jurisdiction in exchange for doing business in the state. In the wake of the Supreme Court’s narrowing of general personal jurisdiction, and the narrowing of specific personal jurisdiction, the number of possible places to bring a lawsuit have diminished dramatically. This diminishment is especially important when the defendant is a foreign corporation. Some have responded by passing registration statutes that require a corporation to consent to personal jurisdiction in the state as a condition to doing business in the state. The supreme court heard oral arguments in Mallory v. Norfolk, which presents the question of whether such statutes are constitutional, and a decision is expected in the spring.

Richard Marcus, Distinguished Professor of Law and Horace O. Coil Chair in Litigation: Litigation-related issues continue to be prominent, and particularly in complex litigation. Among them are the proper handling of multidistrict litigation (which now includes about half of all pending civil cases in federal court), confidentiality of materials exchanged in discovery and filed in court, class action certification, and the appropriate handling of notice regarding materials sought through discovery but withheld on grounds of privilege.

Sam Miller, Affiliated Scholar at the Center for Innovation: Big Tech companies will face continuing assaults on antitrust grounds in 2023. A major DOJ case against Google, alleging monopolization claims, is expected to go to trial in the Fall. Various State Attorneys General are also pursuing a case based on Google’s dominance in the ad tech space.The Federal Trade Commission (FTC) is suing Facebook (now Meta), seeking to undo Facebook’s acquisitions of Instagram and WhatsApp. The Ninth Circuit Court of Appeals should issue its opinion in Epic Games v. Apple, where Epic — the maker of the popular video game Fortnite — is challenging Apple’s “walled garden” control of the App Store. On the legislative front, we may see movement on proposed major amendments to antitrust laws, including legislation proposed by Sen. Amy Klobuchar, which would prohibit major tech platforms from favoring their own apps and make it easier for the government to challenge mergers.

Lois A. Weithorn, Raymond L. Sullivan Research Professor of Law, Consortium Senior Scholar, UCSF/UC Law SF Consortium on Law, Science and Health Policy: In the past year, several states have adopted measures restricting minors’ access to gender affirming medical care. The mechanisms of these initiatives vary.  Most cast a wide net, threatening parents and health care practitioners with criminal and/or civil liability for providing or accessing such treatment for minors. Parents, children, and health care practitioners have initiated legal challenges, and the U.S. Department of Justice characterized these measures as “unlawful discrimination” based on “gender identity” in a letter to all State Attorneys General. Preliminary injunctions have stayed enforcement in some jurisdictions. These state restrictions are unprecedented in scope.  Furthermore, they conflict with scientific evidence of treatment safety and efficacy and the clinical guidelines on gender affirming care established by the major national medical societies. These measures also depart from the legal framework that guides health-care decision-making for minors in the U.S. Prevailing doctrine presumes deference to parental decisions, rarely authorizing the state to override decisions that are in accord with the consensus medical recommendations. The new year will undoubtedly bring further developments regarding the legal status of these state measures.

Joan Williams, Distinguished Professor of Law Emeritus and UC Law SF Foundation Chair and Director of the Center for WorkLife Law: Congress’s failure to pass the Pregnant WorkersFairness Act (despite having the votes to do so) means that pregnant workers will still face being fired when they need simple accommodations, such as when a pregnant cashier’s doctor orders use of a stool in order to avoid eight hours of standing. We hear from pregnant workers on our Hotline who have lost their jobs –or, alas, sometimes their babies—when they are denied simple accommodations their doctors have ordered, like the ability to carry a water bottle on the job. In addition, Congress’s failure to pass the PUMP Act means that millions of women still are excluded from the requirements (under the Affordable Care Act) to reasonable time and space for nursing. As a result, we will continue to hear from women forced to quit, or to quit nursing. This was not the intention of the Affordable Care Act (ACA). It’s widely acknowledged that the ACA drafting that led millions of women to be excluded from coverage resulted from a drafting error—one we are still waiting for Congress to correct.