Capturing the breadth and impact of Berkeley Law’s faculty research could fill countless pages. Here is just a sampling of professors’ wide-ranging scholarship over the past year.
WHEN POLICE KILL
Franklin Zimring’s book When Police Kill reveals that U.S. law enforcement officers shoot and kill about 1,000 people each year—almost double the official estimates. Providing the first legal empirical analysis of police shootings, Zimring studies a swath of government records and mass media reports, examines data from other developed countries, and finds that the U.S. compares poorly.
Suggesting a series of reforms to save lives without jeopardizing officer safety, Zimring argues that any changes to policing must start within local law enforcement agencies. As for why the FBI fails to more carefully audit and collect data on lethal encounters with police, he says lax rules on the use of deadly force have made those who represent police interests terrified of quality empirical research.
Major American cities have acquired high-tech surveillance tools without the knowledge of elected officials and the public. An example: After a city council review that lasted literally two minutes, Oakland created a data integration center that networked together all of its existing surveillance infrastructure. How is this possible? Research by Catherine Crump demonstrates that the answer is federal procurement.
Her article is the first to comprehensively explore the intersection of procurement and local surveillance policymaking. It shows how the federal government funnels billions of dollars to local law enforcement agencies that can be used to buy surveillance equipment. Crump proposes politically feasible steps to bolster local accountability, transparency, and input regarding what technology should be adopted and when it should be used.
STOCK MARKET SCENE
Robert Bartlett and Justin McCrary counter a common theory of stock market abuse that high-speed traders are gouging investors—one that was touted in Michael Lewis’ best-selling book Flash Boys. Their detailed study refutes the idea that such traders fail to offer the best price available to customers and exploit those using slower public data feeds.
Using timestamp data from the two Securities Information Processors (SIPs), Bartlett and McCrary conducted the first market-wide analysis of the latency with which SIPs process quote and trade data. Despite latencies averaging 1.13 milliseconds for quotes and 22.84 milliseconds for trades, surrounding data shows little evidence that “fast” traders initiate such orders to capitalize on stale stock quotes for profit.
BANKRUPTCY ON THE SIDE
Kenneth Ayotte tackles the controversial issue of side agreements in corporate bankruptcy, in which one party stays silent at certain points of the reorganization. His research paper, written with two co-authors, identifies how to maintain the benefits of these agreements, limit their negative impacts, and clarify when to resolve disputes in or out of bankruptcy court.
Ayotte’s paper proposes that if a side agreement is unlikely to cause externalities, a court should enforce it according to its terms. But if there is real potential for value-destroying externalities, the court should limit a non-breaching party’s remedy to its expectation damages. This contrasts sharply with the case law’s current approach, which focuses on tougher contract interpretation standards instead of remedy limitations.
Lauren Edelman ’86 received the first copy of her new book on November 7, election eve. “It’s not often the world changes the day after your book comes out,” she says. Her colleagues believe the award-winning Working Law: Courts, Corporations, and Symbolic Civil Rights could help change the world of workplace race and gender discrimination, which persists even though almost all companies have anti-discrimination policies in place.
While unearthing a system of increasingly feckless policies and procedures that sustain longstanding discrimination patterns, Edelman finds that symbolic civil rights have replaced substantive civil rights. Her theory of “legal endogeneity” describes how institutionalized organizational structures and practices strongly influence judicial notions of legality and compliance.
FAIR EDUCATIONAL OPPORTUNITY
A new paper by Talha Syed asks: what does fair educational opportunity mean for students who, on account of disability, have differential needs and capacities from others? For more than 30 years, that question has stymied courts and commentators alike in their efforts to ascertain the appropriate scope and guiding principles of the Individuals with Disabilities Education Act.
While the law entitles eligible students to individualized education programs that provide “adequate” educational benefit, what counts as adequate remains a source of contention. Syed offers a comprehensive answer by advancing a new principle of distributive justice that reframes the issue of adequate benefits as one of distributive equity, rather than nondiscrimination or equality of opportunity.
THE HABEAS PRIVILEGE
The English Habeas Corpus Act of 1679 was a response to perceived failings by the royal courts and the common law writ to check executive excess at the expense of individual rights. Amanda Tyler’s recent article explains the Act’s huge impact on the development of habeas jurisprudence in English law—greater than most jurists and scholars recognize—and its influence on early American habeas law.
Much of that law did not surface through judicial innovation, Tyler notes, but from efforts to incorporate the Act’s key protections. She says the Act also formed the model that the founding generation imported into the U.S. Constitution’s Suspension Clause. Her research tackles the statutory origins of the habeas privilege, which famed English Judge William Blackstone called “a second magna carta.”
A scholar of American legal history and social welfare law, Karen Tani explores the evolution of welfare in the United States in her book, States of Dependency: Welfare, Rights, and American Governance, 1935-1972. Spanning the New Deal to the modern era, Tani provides a unique understanding of how the social-services program emerged and how it redefined the meaning of citizenship.
The book elucidates how the welfare system implicates federalism, including the division of powers and responsibilities between different levels of government. It posits that disagreements about welfare are often, at heart, conflicts about who should have access to the benefit of citizenship and which level of government ought to decide. With more than 45 million Americans living below the official poverty line, it is a timely topic.
TRACKING THE IMPACT OF RAPID GROWTH
As human actions create more changes to the planet, Eric Biber says rapid growth in technology and population will expand government involvement in many areas of society. His paper Law in the Anthropocene Epoch predicts continual updating of regulations and laws in response to these challenges, pressuring American legal doctrines and norms.
Because the effects of human activity now substantially influence the whole planet, earth scientists are considering identifying a new geologic time period, the Anthropocene. As humans adapt to major changes in oceans, climate, and other vital functions society relies on, Biber foresees greater government involvement in many human activities—and constant updating of government laws and regulations.
A TROUBLING IMPLEMENTATION GAP
The gap between legislative expectations and actual outcomes is especially cavernous in environmental law. Daniel Farber explains how the work of lawyers in the field largely involves compliance or enforcement efforts rather than rule-making. One of his recent articles describes how best to counter weak government enforcement, including citizen suits and the use of “big data” to help identify potential violators.
Farber also demonstrates how agencies can devise new methods of achieving statutory goals not initially anticipated by the legislature—so long as “creative implementation” does not stray far from the statutes. He notes that while mismatches between implementation and statutes can produce useful results, they also risk damaging our concept of the rule of law.
CALIFORNIA’S HIGH COURT
With his latest book, Constitutional Governance and Judicial Power: The History of the California Supreme Court, Harry Scheiber charts a compelling journey from humble beginnings to one of the nation’s most respected state courts. He also explores the court’s hefty impact on California’s cultural, socio-economic, and political landscape over its first 165 years.
Scheiber writes about the court’s jurisprudence from 1964 to 1987, when it tackled such crises as the Los Angeles riots, school busing, gay rights, and farm strikes. He also edits chapters by fellow scholars, including longtime Jurisprudence and Social Policy Program administrator and instructor Charles McClain. The book has been called the most complete, authoritative study of any state supreme court.
Nearly all mass-tort multidistrict litigation (MDL) settles, but judges cannot reject a settlement they deem unfair. Probing the judiciary’s proper role in handling MDL cases, Andrew Bradt says judges should be able to issue non-binding opinions about a settlement’s fairness, which would enable parties to make informed decisions about whether to accept it.
With the Supreme Court’s hostility to class actions, MDL cases make up nearly half of the federal civil caseload. But unlike in class actions, MDL judges have no authority to reject a settlement agreement as unfair to the potentially thousands of parties involved. Bradt and his co-author argue that letting a judge act as an “information-forcing intermediary” would mitigate many agency problems inherent to MDL.
PRIVACY ON THE GROUND
Privacy scandals now form a regular part of the news cycle—rocking industries, harming relations between countries, and sparking citizen mistrust of government. While the public favors stronger regulation, Kenneth Bamberger and Deirdre Mulligan saw little evidence of whether it worked, and sought to change that in Privacy on the Ground: Driving Corporate Behavior in the United States and Europe.
Given the 2016 International Association of Privacy Professionals’ Privacy Leadership Award, the book presents a five-nation study on how those charged with protecting privacy do their work and what types of regulation shape their behavior. The authors discuss corporations’ best practices, offer guidance to policymakers, and share key lessons for anyone concerned with privacy.
NOTICE AND TAKEDOWN
More often than not, decisions on whether to remove online content based on alleged copyright infringement are made by a computer algorithm. A report co-written by Samuelson Clinic for Law, Technology & Public Policy Director Jennifer Urban ’00 and fellow Brianna Schofield ’12 shows how this impersonal approach often leads to misguided takedown actions that would benefit from human review.
Drawing on three main studies, they suggest that whether notice and takedown “works” depends largely on the user and the actual use, and that no viable one-size-fits-all model exists. With the scale of online infringement leading to automated systems that leave little room for human review or discretion, Urban and Schofield suggest various reforms to both law and practice.