Prisoner protest

As countries around the world continue to grapple with inadequate prison conditions, law students in the U.S. have become fierce advocates for incarcerated individuals. Fighting systemic injustices, these students have fought to improve living conditions, provide medical treatment, and reduce practices such as solitary confinement in prisons, among many other issues facing some of the nation’s most vulnerable citizens. If you are interested in working with an organization to defend prisoner civil rights, there are many opportunities for the coming 2023 summer.

UCLA School of Law recently compiled a list of summer opportunities for current law students, both paid and unpaid. With positions available across the country, opportunities abound wherever you will be spending the summer. Make sure you apply early as these roles are sure to be filled quickly, and schedule an appointment with a CSO advisor to review your application materials!

2023 Peggy Browning Fund  header

Since the start of the COVID-19 pandemic, there has been a radical shift in the expectations held by workers regarding the offerings from their employers. Where employees were once resigned to following orders blindly and accepting that what the employer wants is set in stone, there is now a sense that workers can enact change to create a workplace that serves the needs of both the employee and the employer. This shift has not always ended amenably, however – look no further than the current situation at Twitter.

Despite the growing empowerment of the working class, there is still a dire need for others who can stand up for them when an employer refuses to consider change.

If you’re a 1L or 2L and are interested in being an advocate for workers’ rights and workplace justice, we strongly encourage you to apply for the 2023 Peggy Browning Fund Summer Fellowship Program. This is a great opportunity to learn the ins and outs of workers’ rights under the mentorship of practicing labor law attorneys.

Applications are due no later than Friday, January 13, 2023 and offers will start to be made on a rolling basis on Saturday, December 10, so be sure to get your application submitted ASAP! You can read more about the specific fellowship opportunities and application requirements on PBF’s website.

The McGeorge Alternative Summer Advantage Program (“McGeorge ASAP”) is a self-directed volunteer summer legal research project created by alum Lexi Purich Howard and former Asst. Dean of Career Development Molly Stafford in response to COVID-19.  Today, the program provides students with a means of fine-tuning their research and writing skills while discussing a subject they are passionate about. This week’s ASAP paper was authored by Matt Carlson (3L, 2024) under the mentorship of Bianca Samuel (’11), Deputy Attorney General III, Employment & Administrative Mandate Section, Investigations Group.

“In an attempt to screen police candidates and prevent unfit candidates from service, Assemblymembers Jacqui Irwin and Luz Rivas co-sponsored California Assembly Bill 2229, which reenacts the bias requirement training in Government Code Section 1031 related to peace officer minimum standards. The following article provides a background to essential peace officer minimum standards, the history of targeted racial bias reform, failed attempts at overhauling minimum standards, and an overhaul of bias evaluation requirements.”

Read the full paper here.

In an effort to address the need for greater diversity, equity, and inclusion in the legal profession, the Sacramento Legal Employers Diversity Collective and McGeorge School of Law have partnered to build a more inclusive pathway to law school. This partnership utilizes a four-pronged approach to tackle the lack of diversity in legal employment:

  • Pathways Program – bringing middle and high school students to McGeorge’s campus and sending attorneys to local schools to talk about the legal profession.
  • Mentoring – pairing diverse attorneys with mentors at a different employer and from similar backgrounds.
  • Recruitment & Retention – giving employers constructive space to share information on what is and is not working to recruit and retain diverse employees. Ongoing events and trainings will be held with employers, as well.
  • DEI Skills Identification – surveying employers for DEI skills they want to see in new hires. Using the results, McGeorge will retool its curriculum to ensure students graduate with the desired skills.

To further the impact of these efforts, the Diversity Collective has researched various DEI resources and compiled them for employers to reference as they review their own policies and procedures.

In the first of a series of summaries and recommendations drafted by the Diversity Collective and scheduled for release over the next several months, legal employers are encouraged to conduct an in-depth review of the National Association for Law Placement’s (NALP) Diversity Best Practices Guide.

For future summary recommendations and news from the Diversity Collective and McGeorge’s partnership, keep an eye on McGeorge @ Work.

Robert Rodriguez, class of 2024

The McGeorge Alternative Summer Advantage Program (“McGeorge ASAP”) is a self-directed volunteer summer legal research project created by alum Lexi Purich Howard and former Asst. Dean of Career Development Molly Stafford in response to COVID-19.  Today, the program provides students with a means of fine-tuning their research and writing skills while discussing a subject they are passionate about. This week’s ASAP paper was authored by Robert Rodriguez (2L, 2024) under the mentorship of Carmen-Nicole Cox (’11), Chief Counsel of Public Policy and Advocacy at United Way California Capital Region and an adjunct professor of Race, Mass Incarceration, & Criminal Justice Reform at McGeorge.

“Likely frustrated with a lack of accountability in criminal court, 66% of Americans believe that citizens need to have the power to sue police officers for using excessive force. Contrary to this sentiment, instances of police brutality have not increased significantly. However, the availability of phones with recording capability has increased significantly, exposing the misconduct by law enforcement to a world audience with the tap of a screen. With confidence in law enforcement to act in the public’s best interest on the decline among American citizens, civil suits are a citizen’s last line of defense. Under federal law, a person has the power to bring a civil suit against the law enforcement officer that deprived that citizen’s constitutional rights with a section 1983 civil action. In California, residents have the choice of a Tom Bane Act civil action, as well as the § 1983 civil action. Both actions can be used to compensate a victim in the form of compensatory damages, punitive damages, and/or an injunction to attempt to ensure similar future incidents of constitutional deprivations do not occur.”

Read the full article here.

Robert Bell, class of 2024

The McGeorge Alternative Summer Advantage Program (“McGeorge ASAP”) is a self-directed volunteer summer legal research project created by alum Lexi Purich Howard and former Asst. Dean of Career Development Molly Stafford in response to COVID-19.  Today, the program provides students with a means of fine-tuning their research and writing skills while discussing a subject they are passionate about. This week’s ASAP paper was authored by Robert Bell (2L, 2024) under the mentorship of Colin Hendricks (’12), Senior Attorney at California Department of Toxic Substances Control.

“California is in dire need of an upheaval of the water management systems that have been in use since the 1800’s. However, is building a new reservoir something that the state should be putting forward at this moment? With record low water levels, what is the point in having another site of dry lakebed with no water in it? How do we handle the drought right now and future droughts that will affect California for year to come? The answer is not quite so simple and of course comes with many projects working in tandem, one of which could be the Sites Reservoir.”

Read the full article here.

Danielle Koontz, class of 2024

The McGeorge Alternative Summer Advantage Program (“McGeorge ASAP”) is a self-directed volunteer summer legal research project created by alum Lexi Purich Howard and former Asst. Dean of Career Development Molly Stafford in response to COVID-19.  Today, the program provides students with a means of fine-tuning their research and writing skills while discussing a subject they are passionate about. This week’s ASAP paper was authored by Danielle Koontz (2L, 2024) under the mentorship of Richard E. Williamson (’85), founder at Ezer Williamson Law.

The purpose of this research is to examine possible issues that need to be addressed in the National Collegiate Athletics Association’s (the “NCAA”) new name, image, and likeness (“NIL”) legislation. This research will examine the Fair Pay to Play Act (the “FPPA”) that has been enacted by several states by discussing what aspects of the FPPA should be included in the NCAA’s new legislation and elaborating on contractual issues that have yet to be addressed.”

Read the full article here.

There’s no one-size-fits-all career path for lawyers, and the same goes for your law school experience. Your journey is your own, and to make sure you’re getting the most out of your legal education, the CSO strives to get to know each of our students on an individual level. That’s why every 1L has a mandatory one-on-one CSO orientation meeting with one of our career advisors during their first fall semester. This is also how you gain access to McGeorgeCareersOnline (MCO), our online job board.

This year, we will open appointments for CSO orientation meetings on Monday, September 12, 2022. This is our opportunity to get to know each student: your goals, your passions, your personal and professional background, and what kind of career you think you want to pursue – or the path you know you do not want to pursue. As the semesters proceed, we’ll work with you to create a personalized plan to help you achieve your goals.

These are no-pressure meetings, so the only thing you need to do is keep an eye on your email for the link to schedule your appointment!

After every Craft Beer Law class I teach at McGeorge, I select one or two papers to publish on this blog. This year’s first victim is Chloe Fisher.  Chloe is an outstanding student, law review editor, and generally a great writer.  In this article, she explores several constitutional issues with the way California regulates the distributor-manufacturer relationship.  Enjoy –DC (note the formatting gets wonky when pasting writing here through no fault of Chloe’s).

A Constitutional Issue Is Brewing: How California’s Franchise Laws Violate the First Amendment 

Chloe Fisher

Introduction

Last year Seismic Brewing became involved in a legal battle with Reyes Holdings, the largest beer wholesaler in the country.  Bill Swindell, Sonoma County Brewer in Major Legal Battle with Wholesaler Amid Competition Concerns in $9 Billion California Beer Market, ProBrewer (Oct. 8, 2021) https://www.pressdemocrat.com/article/north-bay/sonoma-county-brewery-in-major-legal-battle-with-wholesaler-amid-competitio/.  Reyes brought a breach of contract suit against Seismic related to the termination of a distribution agreement.  Id.  Seismic’s challenges in terminating its distribution contract is a common issue among craft breweries.  Daniel Croxall, Independent Craft Breweries Struggle Under Distribution Laws that Create a Power Imbalance in Favor of Wholesalers, 12 Wm. & Mary Bus. L. Rev. 401, 403 (2021) (“Current statutes make it all but impossible for an independent craft brewery to terminate—legally or financially—a distribution contract after execution.”)

This challenge of ending a distribution contract arises because distributors have gained and maintained market power.  John Szymankiewicz, Beer Law: What Brewers Need to Know 281–282 (2017).  Distributors have gained market power due to increased consolidation and anticompetitive behavior.  Quentin Barbosa, Don’t Tell Me What to Say: How AB 1541 Impacts the Freedom of Speech in Beer Distribution Contracts 52 U. Pac. L. Rev. 257, 258 (2021).  Further, state’s laws often favor distributors.  Id.  In California, various laws dictate certain terms, favorable to distributors, which must be present in distribution contracts.  Cal. Bus. & Prof. Code §§ 25000.5–25000.9.  California’s franchise laws—which specify terms craft brewers must include in distribution contracts—do not align with traditional commercial speech policies; therefore, the government should not be able to compel such terms within a contract.

California’s Franchise Laws

California utilizes a tiered system to prevent any one tier of the alcohol supply chain from having too much control. Thomas Gerhart, Undermining the Law: How Uninformed Legislating Helps Big Beer Erode California’s Tied-House Laws 51 U. Pac. L. Rev. 25, 30 (2019).  Generally, the three tiers—manufacturing, distribution, and retail—must remain separate.  Id.  While California allows manufacturers to self-distribute their products, many breweries still rely on distributors if the brewery plans to expand to locations where it is not feasible to self-distribute. Barbosa, supra, at 261. Therefore, brewers often still need to contract with distributors in order to grow.  Id.

Franchise laws dictate specific contractual terms that must exist in a distribution contract.  Brian Anhalt, Crafting a Model State Law for Today’s Beer Industry, 21 Roger Williams U. L. Rev. 162, 164–65 (2016).  These required terms tend to favor distributors.  Id.  Therefore, beer manufacturers are often at a disadvantage simply by contracting with a distributor.  Id.

California’s franchise laws include dispute resolution protections, territorial protections, transfer protections, and termination protections.  Cal. Bus. and Prof. Code §§ 25000.2–25000.9.  The dispute resolution protections require a successor beer manufacture to arbitrate the issue of fair market value if it terminates a contract.  Cal. Bus. and Prof. Code § 25000.2.  California also requires brewers to grant distributors exclusive rights to distribute within a specified sales territory.  Id. at § 25000.5.  These laws also protect a distributor’s ability to transfer or assign distribution rights to another wholesaler.  Id. at § 25000.9.  In fact, a “beer manufacturer who unreasonably withholds consent or unreasonably denies” the distributor’s ability to transfer or assign distribution rights is liable to the wholesaler.  Id.  The final protection California awards distributors is termination protection.  Id. at § 25000.7.  A brewer cannot terminate a distribution contract “solely for a beer wholesaler’s failure to meet a sales goal or quota that is not commercially reasonable under the prevailing market conditions.”  Id.  Manufactures and wholesalers entering into a distribution agreement cannot waive these franchise laws.  Drew Thornley, Opening the Taps of Freedom to Distribute Alcohol: An Overview of State Alcohol Regulation in the United States and Recommendations for Reform, 52 U. Pac. L. Rev. 821, 828 (2021).

The First Amendment and Freedom of Speech

The First Amendment generally protects an individual’s freedom of speech without interference from the government.  U.S. Const. amend. I.  The First Amendment also prevents the government from compelling speech.  Martin Redish, Compelled Commercial Speech and the First Amendment, 94 Notre Dame L. Rev. 1749, 1749 (2019).  Certain types of speech, such as commercial speech, receive less protection than other speech under the First Amendment.  See, e.g., Bigelow v. Virginia, 421 U.S. 809, 809 (1975) (suggesting commercial speech receives some protection under First Amendment).

The Compelled Speech Doctrine

For the government to compel speech, it faces a high burden.  Dayna B. Royal, Resolving the Compelled-Commercial-Speech Conundrum, 19 Va. J. Soc. Pol’y & L. 205, 208 (2011).  Generally, cases involving compelled speech apply to situations regarding political or ideological expression.  Id.  The Court has examined compelled speech in several cases.  Id. at 208–209.

In 1943, the Supreme Court first addressed the concept of compelled speech in West Virginia State Bd. of Edu. v. Barnette.  319 U.S. 624, 642.  In Barnette, the local Board of Education required all students and teachers salute the flag in public schools.  Id.  Individuals who were Jehovah’s Witnesses challenged the Board of Education’s policy requiring a flag salute on First Amendment grounds.  Id. at 629.  The Court held that the Board’s policy was a form of compelled expression and therefore, unconstitutional.  Id. at 642.  The Court reasoned that the government’s role was to act as a voice of the people, not the other way around.  Id. at 641 (“We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent.”).

The Court again examined compelled speech in Wooley v. Maynard.  430 U.S. 705 (1977).  In Wooley, the litigant, a practicing Jehovah’s Witness, challenged New Hampshire’s requirement that noncommercial vehicles display a license plate with the motto “Live Free or Die.”  Id. at 707.  The litigant argued the license plate motto ran afoul of his moral, religious, and political beliefs.  Id.  The Court ultimately held the state could not compel individuals to display a license plate with that specific motto.  Id. at 717.  The Court, in analogizing Wooley to Babette, reasoned that requiring individuals to display the license plate motto forced an individual to adhere “to an ideological point of view he finds unacceptable.”  Id. at 715.  In doing so, the state violated the purpose underlying the First Amendment.  Id.

More recently, the Court issued a plurality opinion in Pacific Gas and Elec. Co. v. Public Utilities Com’n of California (“PG&E.”)  475 U.S. 1, 1 (1986).  In PG&E, the Court addressed whether the Public Utilities Commission of California (“Commission”) can require a private company to include third party speech in billing envelopes, even if the private company disagrees.  Id. at 4.  Here, the Court stated that such a requirement burdened the company’s First Amendment rights.  Id. at 20.  The burden existed in part because Commission required the company to associate with other speakers’ viewpoints.  Id.

The policy underlying compelled speech involves considering both speaker and listener interests in that particular speech and its relationship to the First Amendment.  Royal, supra, at 212.  However, when compelled speech is at issue, the speaker’s interests predominate over the listener’s interest so that the speaker can maintain “freedom of mind.”  Id. at 209–10.  For a speaker to maintain this freedom, the government cannot force an individual to convey a message the speaker disagrees with.  Id.

          The Commercial Speech Doctrine

Commercial speech receives less protection under the First Amendment.  Royal, supra, at 212.  While the Court has struggled to specifically define commercial speech, the Court agrees on a key characteristic.  Id. at 213–14.  Generally, commercial speech involves the proposition of a commercial transaction.  Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 637 (1985) (citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 445, 455–56 (1978)).

Currently, when determining whether the government can regulate commercial speech, the Court applies the Central Hudson four-part test.  Royal, supra, at 215.  First, the Court looks to whether the speech at issue concerns lawful activity and is not misleading.  Central Hudson Gas & Elec. Corp. v. Public Service Com’n of New York, 447 U.S. 557, 566 (1980).  Second, the Court considers if the government has asserted a substantial interest.  Id. at 568–69.  If the government has asserted a substantial interest, then the Court evaluates whether the regulation directly advances that interest.  Id. at 569.  Finally, the speech restriction must not be more excessive than necessary.  Id. at 569–70.

The policy behind commercial speech involves both speaker and listener interests, with the listener’s interests predominating.  Royal, supra, at 216.  In commercial speech, the listener’s interest is greater because society has a strong interest in promoting the dissemination of commercial information.  Id.  By spreading commercial information, society is better able to make informed economic decisions.  Id.

         California’s Franchise Laws Conflict with First Amendment Principles

California’s franchise laws dictate various protections for distributors that parties must include in distribution contracts.  See generally Cal. Bus. & Prof. Code §§ 25000.2–25000.9.  While the Supreme Court has not definitively decided whether contracts constitute speech, the Ninth Circuit has suggested that contracts are speech.  Barbosa, supra, at 263.  Distribution contracts resemble commercial speech because parties enter these contracts intending to create a business transaction.  Zauderer, 471 U.S. at 637 (citations omitted); Nordyke v. Santa Clara County, 110 F.3d 707, 710 (9th Cir. 1997).  However, policy reasons suggest that distribution contracts may differ from traditional commercial speech.  Rodney Smolla, The Meaning of the “Marketplace of Ideas” in First Amendment Law, 24 Comm. L. & Pol’y 437, 438–441 (2019) (discussing the Court’s application of the marketplace of ideas metaphor to First Amendment caselaw).

         California’s Franchise Laws Fall Somewhat Short of Commercial Speech

California’s various franchise laws—implementing transfer, territorial, and termination protections—set out required terms for distribution contracts.  Cal. Bus. & Prof. Code §§ 25000.2–25000.9.  The three-tier system generally requires the manufacturing and distribution tiers to remain separate.  Gerhart, supra, at 30.  Although California brewers can self-distribute their beer, they often enter distribution contracts as a means to expand their business.  Croxall, supra, at 413.  When a brewer plans to expand its sales territory, that brewer must contract with a distributor to distribute its products, unless the brewer plans to self-distribute.  Id.  Accordingly, franchise laws impact speech between beer manufacturers and beer distributors by requiring certain unwaivable terms within a distribution contract.  Cal. Bus. & Prof. Code §§ 25000.2–25000.9.

While distribution contracts involve speech relating to a business transaction, distribution contracts do not conform with the policy underlying the government’s ability to regulate commercial speech.  Royal, supra, at 221 (suggesting the principal justification behind commercial speech stems from value to consumers).  The Court has held that the government often has an interest in regulating, or even compelling, certain forms of commercial speech.  See e.g., Zauderer, 471 U.S. at 651.  Such interests include ensuring that advertising or other disclosures are factual.  Id.  The Court emphasized that a state’s interests in regulating commercial speech is to protect deception of consumers.  Id.  Essentially, the listener interest in such a case is the key policy underlying the government’s ability to regulate commercial speech.  Royal, supra, at 216.

However, the emphasis on the listener that underscores the justification for lower First Amendment protection of commercial speech does not exist in beer distribution contracts.  Royal, supra, at 216.  Distribution contracts are agreements between a beer manufacturer and beer distributor.  Szymankiewicz, supra, at 281.  Therefore, a general audience does not exist.  Id. at 281–82 (stating that distribution agreements create a relationship between the brewer and the distributor).  Without a general audience, society’s interest in promoting the free flow of commercial information also does not exist.  Royal, supra, at 216.

Further, the interest in preventing deception of consumers is not at issue in beer distribution contracts.  Croxall, supra, at 414 (discussing distributors are large, sophisticated companies that successfully lobby the state legislature in their favor).  Beer distributors are not equatable to general consumers because distributors are not likely to face deception from a beer manufacturer.  Szymankiewicz, supra, at 281 (emphasizing the power imbalance between big distributors and small brewers).  Instead, beer distributors are some of the largest, most sophisticated companies in the nation.  Ilana Davis, Study Shows Just 4 Global Companies Produce 79% of Beer Sold in U.S. Grocery Stores, Vinepair (Oct. 21, 2021), https://vinepair.com/booze-news/4-companies-dominate-beer-market-us/ (referring to Big Beer distributors as “conglomerates”).  Beer distributors also wield great power over manufacturers due to consolidation within the distribution tier.  Croxall, supra, at 409–10.  Accordingly, the interests relevant to regulating commercial speech are not present with regards to regulating beer distribution contracts. Szymankiewicz, supra, at 282 (stating laws generally protect the distributor rather than the manufacturer).

       The Government Should Not Compel the Terms of a Distribution Contract Because Such   Contracts Do Not Conform to the Underlying Policies of Commercial Speech

Distribution contracts do not fit the policy underlying commercial speech; therefore, the government should not be able to compel such speech.  Royal, supra, at 216.  Generally, the government can compel commercial speech to protect consumers.  Redish, supra, at 1759–60.  In a distribution contract, consumer interests are a nonissue, thus the government should face a high burden to justify compelling specific contracts terms.  Szymankiewicz, supra, at 281 (indicating distribution contracts involve the manufacturer and distributor).  If courts hold the government to this higher burden to justify its franchise laws, the government likely will be unable to demonstrate a sufficient interest.  Royal, supra, at 218 (discussing strict scrutiny applies to content-based speech, whereas intermediate scrutiny applies to commercial speech).  The government would have to convince a court that the interest of protecting distributors—which already have an advantage when negotiating distribution contacts—is a strong one.  Barbosa, supra, at 268–70 (increasing the government’s burden with the level of scrutiny).

Conclusion

California’s franchise laws require certain terms that manufacturers and distributors must include in distribution contracts.  Cal. Bus. & Prof. Code §§ 25000.2–25000.9.  These laws provide distributors dispute resolution protections, territorial protections, transfer protections, and termination protections.  Id.  These protections favor the distributor and harm the craft brewer.  Barbosa, supra, at 258­–59.

The California Legislature, in enacting these laws, has compelled manufacturers to agree to certain terms if the manufacturer chooses to enter a distribution agreement.  Anhalt, supra, at 163–64.  While the government often has some ability to regulate commercial speech, the government faces a high burden when compelling speech.  Royal, supra, at 208, 212.  Distribution contracts are not true commercial speech, because the legislature’s required distributor protections do not conform with the underlying policy of commercial speech despite the fact that the contract itself pertains to a commercial transaction.  Id. at 212–13.  Accordingly, California’s unwaivable franchise laws are likely unconstitutional because the government has forced brewers to agree to certain, unfavorable terms in order to enter a distribution contract.  Id. at 208 (“[T]he First Amendment grants a right against compelled expression.”).

 

Consider the following scenario:

Sam, a 2L trans woman who uses “they/them” pronouns, answers a question and the professor responds by asking the rest of the class, “Do you agree with his argument?” Sam quietly stares down at their desk, hoping not to draw attention to themself. It was an innocuous follow up question during a typical seminar, yet Sam felt “othered” because of their professor’s misgendering (using a pronoun that doesn’t align with a person’s identity).

The use of correct pronouns has grown to be a focal point of the LGBTQ+ community and its allies over the last several years. It’s a simple courtesy that fosters inclusion and acceptance, especially in the classroom and workplace where many of us spend the majority of our time, yet many people are still unaware of the impact it can have or downright resistant to making the change. Berkley Journal of Gender, Law & Justice recently published a great guide of best practices for trans inclusion, and we encourage everyone to take a look so that all classrooms, offices, and everywhere else are safe and welcoming for all people.