Professor Peter S. Menell and Berkeley Judicial Institute Executive Director Jeremy Fogel collaborated with the World Intellectual Property Organization (WIPO) in conceiving, designing, and advising “An International Guide to Patent Case Management for Judges,” which was recently released. The guide includes an overview of the patent system in each of the major patent nations and the European Patent Office, as well as explanations of the roles of the judiciary and patent offices. Each chapter covers specific aspects of the civil patent litigation process, such as early case management, discovery, and remedies. Users can access the whole guide or build a custom road map from the offerings.
Menell and Allison Schmitt ’15, who directs the Berkeley Center for Law & Technology’s Life Sciences Project, co-wrote the chapter on the United States. WIPO is a specialized agency of the United Nations that serves as a global forum for intellectual property policy, services, information and cooperation.
Writing in the Boston Review, Professor Jonathan S. Gould and co-author Jacob S. Abolafia compare the discourse about judicial review in the United States and Israel, particularly how the political left in each country has diverged. In the U.S., the left is turning against judicial review as the judiciary — particularly the U.S. Supreme Court — has moved to the right. In Israel, left-leaning protesters have filled the streets to support judicial review as key to preserving the country’s democracy.
The contrast raises more fundamental questions about the relationship between democracy and judicial review, they write.
“Judicial review will sometimes be a critical check on rash government action and safeguard of the interests of marginalized demographic minorities. But it will sometimes prevent legislation that would advance the public interest and set back efforts of the elected branches to protect minorities that have successfully gained a measure of political power,” they write. “The difference will turn on government structures, social context, and political culture.”
Gould and Abolafia argue that at the moment, those features mean judicial review plays a larger and more important role in Israel than at home, but the current status isn’t static.
“In evaluating the importance of judicial review in any country, we shouldn’t succumb to sloganeering about the goodness or badness of courts as a general matter,” they write. “Rather, we need to look carefully to what role courts play in a particular context, recognizing that judicial review is more important in some polities than in others.”
Professor Victoria Plaut’s landmark 2010 paper “Diversity Science: Why and How Difference Makes a Difference” is the focus of a special issue of the American Psychological Association journal Cultural Diversity and Ethnic Minority Psychology. In the volume, researchers reflect on the pathbreaking article — which lays out some of the central elements of diversity, equity, and inclusion sciences — and consider where the field should go in the future.
“The 11 articles in this special issue answer the call to advance innovative theory and methods for the next generation of diversity and inclusion science, building on Plaut’s seminal work,” a group of scholars write in the volume’s introduction.
Plaut, a social and cultural psychologist, joined the Berkeley Law faculty in 2009 and is currently serving as UC Berkeley’s vice provost for the faculty.
A poignant remembrance of David Lieberman, written by fellow Berkeley Law professor and legal historian Christopher Tomlins, has been published in The Docket, the electronic supplement of Law & History Review. Lieberman, who died in a tragic hiking accident on Sept. 10, 2022, was a revered educator, eminent scholar, and trusted colleague who received numerous honors and fellowships. He joined Berkeley Law’s faculty in 1984, chaired several of its committees, served as associate dean of the school’s Jurisprudence and Social Policy Program, and took emeritus status on July 1. In his remembrance, Tomlins recalls “how much good David left behind him, and how much those he left might gain from his example, if we try.”
Professor Sonia Katyal won a Dukeminier Award for her article “The Gender Panopticon: AI, Gender, and Design Justice,” published last year in the UCLA Law Review. She’s the first scholar to land one of the annual honors — recognizing the best papers on sexual orientation and gender identity law — three times. A special issue collecting this year’s honored papers has just been published.
Written with Jessica Y. Jung, then a UC Berkeley undergraduate, the article argues that society needs to grapple with reality that the dynamic between artificial intelligence and gender is far more complicated than current laws suggest, and has a particular impact on lesbian, gay, bisexual, transgender, and queer (LGBTQ+) communities. While the law is increasingly embracing more visibility around gender identities and fluidity, they say, there’s a parallel increase in surveillance technologies that aren’t capable of working beyond strict male and female classifications.
The article draws on philosopher Jeremy Bentham’s concept of the panopticon — a prison design with a central guard tower, to create an illusion of being alone in each cell but ensuring a feeling of being constantly watched. That sensation prompts prisoners to change their behavior.
As the development of AI applications continues, it’s possible to take steps toward entitling, embedding, and encoding gender self-determination, both on social media and in real space, Katyal and Jung conclude.
“When a binary system of gender merges with the binary nature of code, the result fails to integrate LGBTQ+ communities, particularly nonbinary and transgender populations, erasing them from view,” they write. “ The question for legal scholars and legislatures is how technology can and should respond to this complexity.”
Professor Paul M. Schwartz’s article “Privacy and/or Trade,” which was just published in the University of Chicago Law Review, has been named one of this year’s winners of the 13th annual Privacy Papers for Policymakers awards. Given by the nonprofit Future of Privacy Forum, the awards recognize scholarship that’s useful to policymakers within the United States Congress, federal agencies, and international data protection authorities.
The winners will present their work at an event hosted by the organization in Washington, D.C., in February.
The article, co-authored with Georgetown Professor Anupam Chander, traces the way international privacy and trade law, which were developed together, have diverged and now are in clear conflict with one another.
“Will trade be the death of data privacy, as international flows of personal information across the world place our privacy at risk?” they ask. “Or will data privacy be the death of trade, as restrictions on information flows make modern trade increasingly difficult?”
In a major empirical finding, Schwartz and Chander find that 61 countries outside the EU have created their own “adequacy” standards for international data transfers. This splintering of the adequacy approach threatens global data trade. In response, Schwartz and Chander propose a number of policy approaches, including the development of a global privacy agreement, which would be hammered out by the World Trade Organization to protect privacy while avoiding the possibility of different countries throttling the movement of data.
The Berkeley Center for Law & Technology, the Berkeley Technology Law Journal, and the student group Coalition of Minorities in Technology Law recently partnered on the third edition of a symposium focused on race and technology law. “Race Ex Machina: Confronting the Racialized Role of Technology in the Criminal Justice System” examined how techniques and instruments like predictive policing, pretrial risk assessment, and algorithmic sentencing tools can replicate racial bias, while intellectual property protections can make understanding and challenging their use difficulty. The day-long symposium featured panels on the reliability and legitimacy of these new products and procedures, the privacy implications — particularly for Black and brown communities — and potential policy and regulatory solutions. The speaker lineup included a wide range of academics and policy advocates, including keynote speaker Professor Vincent Southerland of NYU Law and Berkeley Law Professors and BCLT Faculty Co-Directors Andrea Roth and Erik Stallman.
Professor Emeritus Melvin Eisenberg’s new book, Legal Reasoning, has just been published by the Cambridge University Press. The book explains and analyzes the modes of reasoning used by courts in making and applying common law rules. New York University Law Professor Jeremy Waldron calls the book “an illuminating overview of the common law” that’s “beautifully structured, briskly argued, and gracefully illustrated with dozens of cases.” It’s the latest in an astounding series of books and articles by Eisenberg, who joined the Berkeley Law faculty in 1966. His legal service stretches back over more than half a century, including stints as an assistant counsel for the Warren Commission, which investigated the assassination of President John F. Kennedy, and assistant corporations counsel of New York City.
The 2022 Recent Faculty Scholarship brochure has just been published, showcasing the newest articles and books from our professors as well as highlights from our research centers and institutes and brief profiles of our newest faculty members. “Legal scholarship matters,” Dean Erwin Chemerinsky writes in his introductory letter. “Although it may take many different forms and reach a variety of audiences, writing by law professors influences the development of the law, educates students across the country, and advances knowledge about the legal system.”
A new report published by Berkeley Law’s Center for Law and Work (CLAW) and the UC Berkeley Labor Center finds Amazon’s recently announced “freedom of association policy” doesn’t meet international human rights standards for workers involved in union organizing.
Authored by international labor law expert Lance Compa, Failure to Deliver: Assessing Amazon’s Freedom of Association Policy under International Labor Standards is a legal analysis of Amazon’s March 2022 policy, which pledges to fulfill International Labor Organization (ILO) and United Nations norms protecting the rights of organizing workers, even when an individual nation’s labor laws don’t require those standards to be met. Amazon’s policy is, in fact, not compliant with those global norms, Compa finds, and the anti-union campaign tactics used by Amazon management continue to violate international standards.
Amazon’s policy makes no specific reference to ILO Conventions 87 and 98, which Compa calls the “polestar international standard” and prohibit interfering with organizing efforts through pressure, threats, or discrimination. Amazon’s own campaigns, however, have aggressively sought to impose pressure and spark fear in workers considering supporting union representation.
“The findings of this analysis should prompt Amazon to develop a genuine freedom of association policy that safeguards workers’ organizing rights and moves the company toward a healthy collective bargaining relationship when its employees choose union representation,” says Professor Catherine Fisk, Berkeley Law professor and CLAW’s faculty director.
A collaboration between the Berkeley Center on Comparative Equality and Anti-Discrimination Law and the Open Society Justice Initiative has produced a fresh update of a policy brief tracking the rise of restrictions on religious dress across the European Union, particularly bans on Muslim women wearing headscarves, face veils, or other clothing items. While only nine of the 27 members of the EU and the United Kingdom have national bans on religious dress worn by Muslim women, private or institutional restrictions exist in 16 nations. The report tracks the arguments used to justify the restrictions — including post-9/11 concerns about national security, gender equality, a desire for assimilation, and religious neutrality — and how courts have responded.
The brief also includes a raft of recommendations for governments, the courts, EU member states, and nonprofit funders to reject bans that curtail Muslim women’s ability to access jobs, education, services, and move freely in public spaces.
Berkeley Law Professor David B. Oppenheimer, the director of the center, supervised students who helped revised the chapters on individual countries, including Renee Coe ’23, Clara Dorfman ’22, Molly Haley ’22, John Karim ’22, Phoebe Lavin ’22, Alyssa Mejia Whisler ’23, José Fernando Rengifo LL.M. ’22, Rana Sahar ’22, and Daryl Yang LL.M. ’22.
A new case study from Adam Sterling and two colleagues from UC Davis tracks how Veeva Systems became the first publicly-traded firm to convert to a Public Benefit Corporation. Unlike most for-profit companies, which generally focus first on shareholders, a PBC — a relatively new corporate form that has been introduced in Maryland, California, Delaware, and 33 other states over the past decade — allows corporations to aim for a public purpose that could benefit multiple stakeholders. The case study, sponsored by Berkeley Law Executive Education, is publicly available along with a companion video and will be used in two courses: Sustainable Capitalism & ESG Online and ESG: Navigating the Board’s Role.
The latest issue of the student-run Berkeley Journal of Criminal Law has just been published, featuring four articles from scholars and law students from across the country. Claire K. Child and Stephanie A. Clark of Vermont Law School analyze the collateral damage caused by the lifetime ban on receiving federal food assistance for those convicted of a felony drug charge; Kristen McCowan, Henry F. Fradella, and Tess M.S. Neal of Arizona State University probe the influence of rape myth-related information in court. In addition, Harvard Law student Lucy Litt examines bias in the federal RICO street gang database, and recent Vanderbilt Law graduate A. Spencer Davies offers a new strategy for regulating the use of facial recognition technology by police.
Trade secret laws are increasingly functioning as a way to shield a wide swath of information from the public, Sonia Katyal writes in a recent Georgetown Law Journal article. She and co-author Charles Tait Graves argue that this new approach is a sea change that in many cases extends protections meant to safeguard intellectual property to nearly all information about a company, product, or even a government loan, in cases running the gamut from employment law to environmental hazards. “The overbreadth of secrecy and confidentiality claims to conceal matters of public concern or other information that should ordinarily be publicly available,” they write, poses a substantial threat to an informed democracy. Katyal and Graves also propose a broad and more narrow path to reform.
Professor Kenneth Ayotte and Christina Scully ’21 challenge a tenet in law and economics in a recent article published in the Yale Law Journal’s online Forum. Using bankruptcies at J. Crew and Nine West as case studies, they argue the assumption that corporate finance contracts are written optimally, leaving little place for bankruptcy law, is an idealized view. In fact, they write, the companies’ stories show that “contracting parties, no matter how sophisticated, cannot possibly imagine and contract to prevent all possible loopholes that other sophisticated parties might exploit,” and that any theory of debt should recognize this inherent complexity.
A research team including Catherine Albiston ’93 has been awarded a $750,000 grant from the National Science Foundation to help the San Francisco Unified School District create a new student assignment system. Albiston, UC Berkeley School of Information Professor Niloufar Salehi, and University of Southern California Professor Afshin Nikzad will assist the district in designing a zone-based system aimed at increasing diversity in schools and predictability for families while maintaining strong connections among students and families in neighborhood schools.
For a second year, the student-run Berkeley Technology Law Journal and the Berkeley Center for Law & Technology are co-sponsoring the Race & Technology Law Symposium, this time with a focus on innovating health equity. This year’s edition is Nov. 10 and adds a third partner, the Coalition of Minorities in Tech Law. The event is virtual and free, and CLE credit will be offered. Click here to register and here to read about the inaugural event.
Orin Kerr spotlights the U.S. Supreme Court’s recent turn toward subjective rules for searches by police officers, and sketches a framework for how judges should choose between subjective and objective tests in Fourth Amendment cases, in a recent paper. “The best path forward is for courts to make context-sensitive decisions based on the potential benefits of narrower subjective rules and the ease of determining intent in suppression hearings,” Kerr writes.
In a recent paper in the University of Colorado Law Review, Leti Volpp juxtaposes the “Migrant Justice Platform,” a set of policy recommendations by a coalition of immigrant rights activists to overhaul the U.S. immigration system, with President Biden’s campaign plan. She describes how the proposal aims to expand our collective political imagination, and outlines how limiting reform pursuits to what is deemed politically pragmatic or reasonable restricts the chance for transformative change.
Seth Davis recently joined an expanded team writing for “D.C. Circuit Review — Reviewed,” a regular feature keeping tabs on the powerful U.S. Court of Appeals for the District of Columbia Circuit published in the “Notice and Comment” blog, a joint venture from the Yale Journal on Regulation and the American Bar Association Section of Administrative Law & Regulatory Practice. Other authors include former D.C. Circuit Judge Thomas Griffith and several litigators.
Despite the United Kingdom’s high-profile “Brexit,” the nation decided to stick with the European Union’s strict data privacy law. In a new paper in Theoretical Inquiries in Law, Paul M. Schwartz evaluates the choice using five models of preference change, finding that each offers clues into the decision. This issue of the journal collects articles written to honor Professor Robert Cooter at a 2020 celebration of his scholarly career.
President Joe Biden issued an executive order in February aimed at reunifying families separated while trying to migrate into the United States, but it’s unclear how to do that. In a recent article in Science, Human Rights Center Faculty Director Eric Stover and his co-authors propose creating a DNA database — which has been successful in identifying remains of missing people — to make the task easier in the many instances where separations happen, including wars and natural disasters.
Amid growing pressure for corporations to adopt a more sustainable and inclusive approach to capitalism, Amelia Miazad, the director of Berkeley Law’s Business in Society Institute, was a key author of the latest report from the Enacting Purpose Initiative. Intended as a practical resource for leaders to enact corporate purpose within their organizations, the report lays out a road map for boards of directors to work with their investors to address societal issues and sustain long-term value creation. Miazad is the North American Chair for the international partnership.
With concerns growing about threats to America’s democracy, Jonathan Gould considers the push for formally enacting constitutional norms into law. In the Georgetown Law Journal, he explores the practical and legal barriers — and concludes codification can be a tool, but isn’t a panacea. “Law can certainly help strengthen constitutional norms,” Gould writes. “But constitutional norms depend on more than just better laws. Better politics are required as well.”
A White House executive order aimed at promoting greater economic competition cited a forthcoming paper from Tejas Narechania showing customers served by monopoly providers — roughly 20% of the country — pay more for worse service than when they’re in a competitive market. Narechania also lays out ideas for how to regulate monopoly carriers to protect consumers.
California Law Review published three pieces as part of the cross-journal Reckoning and Reformation symposium, organized to ask scholars who study law and inequality “to grapple with a moment in which we seem to be at an inflection point of fundamental reformation.” The New York University Law Review’s lineup features an essay from Abbye Atkinson on Philando Castile, school lunch debt, and state violence.
Ian Haney López has been named the 2021-22 William H. Neukom Fellows Research Chair in Diversity and Law by the American Bar Foundation. He will study the connections between electoral rhetoric, racial identity, partisanship, and support for various public policies. The project builds on Haney López’s recent work, including the book Merge Left and the “Race-Class Academy” video series, regarding how best to combat what he calls “dog whistle politics.”
Articles authored by Professors Frank Partnoy, Robert Bartlett, Steven Davidoff Solomon, and Senior Fellow Matthew Cain made Corporate Practice Commentator‘s annual list of the top 10 best papers in corporate and securities law. “The Misuse of Tobin’s q” and “Does Revlon Matter? An Empirical and Theoretical Study” were selected through a poll of academics in the fields from a pool of more than 300 articles.
A proposal from the Center for Law, Energy & the Environment that the U.S. adopt and support international adoption of a methane protocol has been selected as one of the The CLEEN Project’s top three ideas for international partnerships to accelerate pathways to global decarbonization. The protocol provides a framework for tracking, managing, and reducing methane emissions from oil and gas facilities, which generate a quarter of total methane emissions.
Seth Davis and Katerina Linos organized an April 16 symposium on sharing global responsibility for refugees, in keeping with the principles enshrined in the 2018 Global Compact on Refugees. Panelists — including Davis and Linos and fellow Berkeley Law professors Saira Mohamed, Leti Volpp, and David Singh Grewal — explored the political economy of responsibility sharing, including the role of race. The event was sponsored by the California Law Review and the Miller Institute for Global Challenges and the Law.
Lizzy Brilliant ’21 argues that keeping inmates on death row — and continuing to allow juries to hand down new capital sentences — when executions aren’t being carried out violates the Eighth Amendment. Moratoriums like California’s leave prisoners in permanent limbo and confuse jurors, so stopping new capital trials and sentencing is “the only constitutionally permissible judicial solution,” Brilliant writes.
Title: Unjustified Punishment: The Eighth Amendment and Death Sentences in States that Fail to Execute
Published in: California Law Review
Abbye Atkinson recently testified before the U.S. Senate Banking Committee about credit, debt, and the widening racial and gender gap. Her testimony drew on some of her recent and upcoming research, including how Congress has encouraged debt among socioeconomically marginalized groups and how that debt burden causes wealth to flow out of disadvantaged communities.
In a California Law Review paper, Asad Rahim asserts that Justice Lewis F. Powell Jr.’s plurality opinion in the landmark 1978 Bakke affirmative action case was motivated more by fear of the further radicalization of college students than by the goal of greater equality. Rahim contests the idea that there were “two Powells” — the pre-court conservative and the left-leaning centrist jurist — and points to similarities in his statements from both eras.
Title: Diversity to Deradicalize
Published in: California Law Review
In these fraught times, commentators often decry the nation’s “political tribalism,” with some citing American Indian Tribe governance as antithetical to democracy — a thesis that also appears within federal Indian law cases. In a recent article, Seth Davis argues Indian Tribalism is at its core compatible with democracy, largely because it leans heavily on discourse and negotiation.
Title: Tribalism and Democracy
Published in: William & Mary Law Review
Pregnancy and childbirth are much more dangerous for American Black women than their white counterparts. Yet the Preventing Maternal Deaths Act passed by Congress in 2018 completely ignores race. Khiara M. Bridges digs into this “racial irony” in a paper that questions whether what she calls the “impoverished discourse” on the topic is creating similarly impoverished solutions.
Title: Racial Disparities in Maternal Mortality
Published in: New York University Law Review
Two professors contributed to a recent book examining the roots — and potential future — of the movement that launched President Donald Trump into office. john a. powell ’73 penned the forward of Trumpism and its Discontents, and Catherine Albiston ’93 wrote a chapter analyzing the changes in sexual harassment law since Anita Hill and how the #MeToo movement has affected the legal debate.
Title: Trumpism and its Discontents
Published by: Berkeley Public Policy Press
Incarcerated people in the federal criminal legal system are uniformly denied privileged email communications with their lawyers. A report by our Samuelson Law, Technology & Public Policy Clinic and the National Association of Criminal Defense Lawyers details misguided policies and concrete harms surrounding this issue — and urges Congress to act.
Title: Preserving Incarcerated Persons’ Attorney-Client Privilege in the 21st Century
Published: On law.berkeley.edu and nacdl.org.
Laurel E. Fletcher’s new article puts the controversy over the law school’s decision to install paintings by Fernando Botero depicting U.S. soldiers torturing prisoners at the Abu Ghraib prison into a broader context and explores what the Boteros have come to mean to the Berkeley Law community.
Title: Let’s Talk about the Boteros: Law, Memory, and the Torture Memos at Berkeley Law
Published in: Berkeley Journal of International Law
Rebecca Wexler exposes injustice in an award-winning paper on how criminal defendants are barred from subpoenaing online communication content — even when it could exonerate them. Using evidence law to assess the Stored Communications Act, she says courts wrongly protect tech companies that use data privacy as a guise for non-disclosure.
COVID-19 has exacerbated concerns that algorithmic decision-making leads to discrimination against people of color. In a paper explaining why efforts to define algorithmic accountability have misfired, Robert Bartlett and three co-authors offer a workable definition rooted in Civil Rights Act case law addressing statistical discrimination.
Analyzing a program that enables federal appellate judges to send Congress opinions that describe possible technical problems in statutes, Tejas Narechania and a co-author see room for improvement. Their paper urges judges to send more opinions to Congress, noting that “the judiciary is uniquely situated to identify problematic statutory text.”
Supreme Court Justice Elena Kagan’s dissent in Seila Law v. CFPB cites a California Law Review article by Stavros Gadinis, noting its finding that independent agencies form the governance bedrock for U.S. financial markets. Gadinis tracks the unraveling of that paradigm, and how politicians have increased influence over banking.
Aaron Edlin and three co-authors won a Jerry S. Cohen Memorial Fund Writing Award for the best antitrust article of 2019 on exclusionary conduct. They examine when competition law and authorities should worry about price cuts by an incumbent monopoly, and propose changes to current U.S. policy that aim to increase consumer welfare.
The Supreme Court will likely soon decide how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. In a paper noting why the amendment’s original conception may dictate the ruling, Orin Kerr applies lessons from Aaron Burr’s 1807 treason trial to compelled decryption of cell phones, computers, and other devices.
David A. Carrillo ’95 and Matthew Stanford of Berkeley Law’s California Constitution Center say valuing the Federal Arbitration Act over state substantive law undercuts key authorities for state sovereignty. Their paper calls this conflict “a battle over the republic’s core principles” and urges the U.S. Supreme Court to revisit its interpretation of the Act.
Once feckless in ensuring that local governments in California satisfy housing needs for all income levels, the Dept. of Housing and Community Development is gaining strength. A paper by Eric Biber and Moira O’Neill show why recent bills have buoyed the agency’s role, and how that could fuel more accountability and stronger oversight.
To help level the inequity in corporate leadership roles, California became the first state to mandate board gender quotas in 2018. In a new paper that examines “negative announcement returns” to adopting such quotas, Steven Davidoff Solomon and three co-authors point to shareholders fearing more legislation of non-economic values.
Scores of juvenile justice system youth are subject to electronic monitoring, yet little is known about its effects. A new paper by Catherine Crump finds that tracking young people this way yields troubling results that fail to advance individual rehabilitation and open the door to more invasive tactics. Crump also offers suggestions for reform.
Robert Merges revisits the Hamiltonian origins of America’s patent system, and why they matter today. His recent paper says contemporary administrative law is a poor fit for the U.S. Patent and Trademark Office, and recommends honoring the office’s original mission and its cooperative, interactive relationship with other government branches.
Professor and former dean Christopher Edley edited and co-authored the final report of a study committee he chaired for the National Academies of Science, Medicine, and Engineering. His team spent 18 months designing a national system of K-12 education equity indicators that highlight educational achievement and opportunity disparities.
More companies are going public via dual class stock, where shares owned by the founders or other insiders have greater voting rights than shares sold to public investors. In a paper he co-authored, Steven Davidoff Solomon explains the perils of sunset provisions, a popular compromise allowing dual class stock only if it converts to a single share structure after a set amount of time.
Avani Mehta Sood explores how jurors can become prone to bias and legal misunderstanding when evaluating criminal attempt. Her new paper challenges common notions of attempt law (which imposes liability when a defendant intends and starts a crime but does not successfully complete it), and offers ways to reduce confusion.
“Spit and Acquit,” where certain defendants charged with petty misdemeanors are offered a dismissal or plea deal in exchange for their DNA, is used in Orange County. In a paper that notes issues raised by this method, Andrea Roth shows the problems it poses in the areas of public safety benefits, privacy, and democratic accountability.
While many lawyers think the party providing the first draft of a merger deal ends up with better terms, there was no empirical research until Adam Badawi took it on with a co-author. Their new paper on large M&A transactions with U.S. public-company targets debunks certain myths and finds a “limited” first-drafter advantage.
Corporate bankruptcies often involve fragmented, complex capital structures marked by layers of debt and many subsidiaries. A new paper by Kenneth Ayotte tracks the reasons for this, how investor disagreements on the value of loan-backing assets fuel inefficient liquidations, and ways to reduce costly litigation over valuation.
Growing use of the cloud and its international scope challenges traditional legal authorities that permit access to data stored outside the U.S. Paul Schwartz tracks the instability of American rules in this area. His paper delineates three models of cloud computing to provide greater clarity for courts evaluating international data access requests.
Migration raises questions about the exercise of state power over borders. Sarah Song examines common justifications, and arguments for open borders. Her paper confronts whether a democratic state can morally prevent its citizens from exiting the country and bar migrants from entering, and if so how such decisions should be made.
Bank regulations have long used various restrictions to protect against crises, but Prasad Krishnamurthy shows how recent technological and institutional innovation—and shifting thoughts about competition—now curb the ability to limit it. His paper says certain restrictions can bolster current bank regulation and industry stability.
A study co-authored by Robert Bartlett finds that mortgage lenders charge higher interest rates and earn 11 to 17 percent more profit on loans to African Americans and Latinos than to whites. The study says African American and Latino home buyers pay up to $500 million more in interest each year than whites with comparable credit scores.
A study by Berkeley Law’s Human Rights Center offers insights from 21 nations on ways to prevent child marriage. Commissioned by Save the Children, the study draws upon more than 375 reports as well as interviews with practitioners from around the world. Child marriage affects an estimated 12 million girls each year.
The #MeToo movement prompted organizations to hurriedly create or update anti-harassment protocols. Noting the perils of this tactic, Lauren Edelman’s new article cites how companies often frame incidents as poor management, not harassment, and how the mere presence of a policy routinely prompts courts to shield them from legal liability.
A new study co-authored by Franklin Zimring questions laws allowing the indefinite custody of sexually violent predators after their sentences end. He says research showing California predators are far less likely to re-commit their crime than robbers, burglars, and drug offenders was suppressed because it threatened the legitimacy of state laws.
How does the U.S. Supreme Court decide whether to rule on a patent case? Rather than settling a split among two U.S. appeals courts—given that patent appeals often land in the Federal Circuit—a paper by Tejas Narcechania says the high court eyes a different kind of split: whether two fields of law conflict over the issue in question.
Because intermediaries are needed for services such as web hosting, marketing, and product delivery, the law is often used to deter their access to cybercriminals. In a recent article with two co-authors, Chris Hoofnagle examines the impact of enforcement methods, evaluates various interventions, and probes their success in curbing cybercrime.
Tobin’s q is the ratio between an asset’s market value and its replacement value. Robert Bartlett and Frank Partnoy address why it has become an over-simplified form of evaluation, and how it leads to problematic errors. Their recent paper shows how results differ—and are more reliable—when alternative approaches are used.
Alexa Koenig ’13 probes how international criminal tribunals should obtain data stored electronically by private, U.S.-incorporated companies for use as evidence. Her paper notes five options, and argues that the American Servicemembers’ Protection Act is not an absolute barrier to International Criminal Court investigations in the U.S.
Sonia Katyal notes that the surging transgender rights movement has forced a rethinking of core legal presumptions associated with science, sex, and gender. As scholars and policymakers respond to this complexity, Katyal’s award-winning article offers a new way to consider the relationship between sex and gender.
Stavros Gadinis and Amelia Miazad see chief compliance and legal officers becoming lead actors in ensuring companies’ sound risk management and ethical leadership. Their paper says that while holding corporate boards accountable has long been seen as elusive, that may soon change with the growth of compliance department reporting.
Abbye Atkinson takes issue with how non-dischargeable debts are treated in the Bankruptcy Code. Her recent article asserts that the Code’s three main reasons for precluding debts from discharge seem arbitrary, and have harsh implications for disenfranchised communities in which such debts may be concentrated.
Amid criticism of the Trump Administration’s pace for filling top government posts, Anne Joseph O’Connell paints a more detailed and less jarring picture. Her new report finds the administration submitting nominations “at a decent though not remarkable clip,” and striving to fill key openings in courts and agencies.
Nearly 120 countries have national human rights institutions. A new paper co-authored by Katerina Linos describes what makes these institutions effective, or ineffective, at bridging international law and domestic practices. It finds that formal safeguards and the ability to process individual complaints fuel success and build broad support.
Daniel Rubinfeld won an American Antitrust Institute annual award for the best antitrust and platform markets article. His paper with Michal Gal addresses the recent growth of free online goods and services, problems caused by their hidden costs, and how antitrust policy and regulatory tools can best manage them.
Adam Badawi ’03 says law firms have a sizable effect on the legal writing of their lawyers. His new paper, which studies registration statements filed for public offerings, shows that lawyers who change firms—but execute the same type of documents—often alter their writing to reflect the linguistic culture of the new firm.
In a new article, Karen Tani confronts sexual assault on college campuses and how the issue has evolved legally and politically. Tani tracks the Department of Education’s enforcement campaign under Title IX, the backlash against it, and how federal agencies play a key jurisdictional role in shaping policy.
During the 2016 primary campaign, candidates Clinton and Sanders squabbled over a federal statute that preempts some state tort claims against the gun industry. But Stephen Sugarman says both sides got it wrong. His new paper describes the statute’s intent, how most gun-case plaintiffs would be stymied even without the statute, and more.
More countries are considering a destination-based cash flow tax on multinational companies. In a recent paper evaluating the tax against five criteria, Alan Auerbach and his co-authors explain how the tax might work, analyze its likely effects, and note issues that would arise with implementation.
Courts have long struggled over issues of fairness and equity in cases about the educational needs of disabled students. In a paper reframing the issue of adequate educational benefits, Talha Syed offers a new distributive justice principle, called “proportionate priority,” as a guide.
New faculty chair-holder Angela Onwuachi-Willig focuses much of her research on civil rights issues. Here, she explains why employer grooming policies that ban hairstyles such as braids, locks and twists place an undue burden on African-American women and violate antidiscrimination law.
Machines, such as a cameras and computers, increasingly provide facts in legal disputes. Andrea Roth notes that courts are assessing this evidence through old rules of testimony. Her new paper finds that machine-based facts should not be evaluated that way, as it limits a jury’s ability to assess the machine’s credibility.
Robert Cooter explores the value of a statistical life (VSL), which balances the risk of death and the costs of limiting that risk. Assessing community and market VSLs, Cooter endorses the former to help measure damages in tort law and aid regulatory cost-benefit analyses. His article calls for basing a life’s legal value on the community VSL.
The Oracle v. Google case, warns Peter Menell, is on a rocky path. His paper says patent infringement claims unwisely gave exclusive appellate jurisdiction to the Federal Circuit, which bungled copyright issues guided by the Ninth Circuit. Menell assesses potential reforms to such problems created by software IP litigation.
In the latest California Law Review, professors Melissa Murray and Karen Tani respond to another CLR article, “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation.” Murray and Tani argue that “sex bureaucracy” is not new. But there are “truly new and striking” elements of the state’s regulation of sex, and the move to affirmative consent, that deserve scrutiny.
Patent pools are on the rise due to the high number of patents in industries such as software and mobile phones. Do the transaction cost savings of these pools outweigh their potential to harm consumers? Robert Merges uses an empirical approach in his paper to tackle an issue long marked by theory and speculation.
Kenneth Ayotte tackles the issue of side agreements in corporate bankruptcy, in which one party stays silent at certain points of the reorganization. A proposal by Ayotte and co-authors aims to maintain the benefits of these agreements, limit their negative impacts and clarify when to resolve disputes in or out of bankruptcy court.
Nearly all multidistrict litigation (MDL) cases settle, but judges are powerless to reject a settlement that they deem unfair. So, in his new paper, Andrew Bradt says MDL judges should be able to issue non-binding opinions about a settlement’s fairness, allowing parties to make informed decisions on whether to accept it.
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 new paper predicts continual updating of regulations and laws in response to these challenges, pressuring U.S. legal doctrines and norms.
Hawaii endured the longest use of martial law in U.S. history during World War II. In Bayonets in Paradise, authors Harry Scheiber and Jane Scheiber describe how military control imperiled civil liberties, pitted constitutional protections against emergency powers and led to historic legal challenges to martial law.
Locals who work on sexual and gender-based violence in Africa should have more say in accountability measures when it violates international law. Kim Thuy Seelinger and Julie Freccero, noting findings from a Human Rights Center summit on how to respond to such violence during armed conflict, assert why local influence should expand.
A 2002 paper co-written by Kevin Quinn has won the American Political Science Association’s Lasting Contribution Award. Written with Andrew Martin, the paper uses data analytics to assess judicial behavior on the U.S. Supreme Court from 1953 to 1999. The “Martin-Quinn model” is now widely used to measure judicial ideology.
David Gamage has written two of the 10 most-cited articles in the seminal Tax Law Review over the last five years, according to TaxProf Blog. One of them, “Three Essays on Tax Salience,” ranks No. 1 on the list. His other entry, about perverse incentives arising from healthcare reform’s tax provisions, ranks No. 6.
More often than not, decisions on whether to remove online content based on alleged copyright infringement are made by a computer algorithm. A new study, co-written by the Samuelson Clinic’s Jennifer Urban ’00 and Brianna Schofield ’12, shows how this impersonal approach often leads to misguided takedown actions that would benefit from human review.
Richard Mendelson’s new book explores the legal and commercial battles that turned Napa Valley from a quiet farming enclave into a famous wine-growing region. Mendelson, who runs Berkeley Law’s Wine Law and Policy Program, reveals how the area built its wine industry while still protecting its agricultural integrity.
Robert Cooter says both sides of the political aisle should embrace legal rights that spark creativity and innovation in our economy. His paper with Ph.D. student Benjamin Chen explains how creative activity enhances our standard of living, and how its growing importance demands a recasting of economic freedom.
In Race and Economic Jeopardy for All, Ian Haney López outlines a way to end what he calls “dog whistle politics,” a form of race baiting that “turns working people against each other and against good government.” He warns that such scapegoating is “the gravest threat facing the labor movement and indeed our democracy.”
A new book by Human Rights Center co-authors Koenig, Stover, and Peskin explores the diplomatic and military strategies that states have adopted to pursue and capture war crimes suspects. From Nazi war criminals to today’s terrorists, it’s a story fraught with broken promises, backroom politics, and daring escapades.
The treatment of captured Americans by the British during the 1775-‘83 Revolutionary War remains largely unexplored in legal scholarship. Until now. Amanda Tyler studies the legal status of colonialists during this upheaval and links it to adoption of the Suspension Clause in the U.S. Constitution.
In his book, On War and Democracy, Chris Kutz examines the moral justifications democracies often invoke to wage war. He argues that war is not a tool to promote egalitarian values and bemoans the slide toward the borderless, seemingly endless campaigns of violence, surveillance, and remote killings.
Catherine Albiston, Lauren Edelman, and Joy Milligan propose a new metaphor for the dispute resolution process: the dispute tree. They say it’s better than the dispute pyramid metaphor because it represents the multiplicity of options, while reflecting the living and evolving nature of disputes.
Dan Farber says the EPA faces a difficult task in crafting regulatory solutions for interstate air pollution. His new paper explains how the practices of upwind states can prevent downwind states from meeting air quality levels mandated by federal law—and how a recent Supreme Court ruling may impact cost assessment.
Professor and legal counsel john a. powell co-authored a friend-of-the-court SCOTUS brief for 35 prominent social scientists, including Dr. Vicki Plaut, in Fisher v. University of Texas. The brief supports the use of race in university admissions policies to achieve diversity and equal opportunity for all students.
In The Double-Edged Sword of Withdrawal Rights, Prof. Ken Ayotte adds to the ongoing debate about corporate bankruptcy. He analyzes companies that try to avoid bankruptcy’s provisions, like the automatic stay on creditor collections, by organizing their major assets into separate legal entities.
As more lawyers file merger suits in states known for favorable verdicts, other states seeking to attract such litigation are awarding higher attorney’s fees and dismissing fewer cases. A paper co-written by Steven Davidoff Solomon says the resulting competition is impacting legal strategies—and judicial rulings.
Analyzing nearly 4,000 Chinese bar exam questions over a 12-year period, Rachel Stern says the test has become explicitly political. Her study shows how the exam rewards answers that convey loyalty to the state, punishes dissent, and mirrors others ways in which China impels public acts that support the ruling party.
The Supreme Court, since 2006, has repeatedly ruled in favor of First Amendment claims against campaign finance regulations. In his review of a book that offers a way to reverse this trend, Bertrall Ross provides an alternative strategy that addresses the court’s concerns about chilling constitutional speech.
In a new paper, Robert Cooter clarifies two theories of law and economics. The first explains the causes and effects of law; the other explains what the law requires people to do. To influence legal thinking, Cooter says, economists must show how these models can improve the interpretation of the law and help predict its consequences.
To best counteract climate change, Eric Biber suggests a priority shift from penalizing carbon emissions to funding clean-energy practices. He co-wrote a new paper that touts promoting green industrial policies through subsidies and tax rebates. Supporting clean energy, it says, builds support for imposing costs on polluting industries.
For Eric Stover, reuniting children who went missing or were abducted during El Salvador’s civil war is hugely gratifying. But as his report shows, reunification brings major challenges for now young adults reintegrating into their biological families. The report offers helpful insights for groups that reunite family members separated by war, natural disaster, and other causes.
Stavros Gadinis looks at transnational regulatory networks in three areas of securities regulation: accounting, cross-border fraud, and money laundering. His case studies show how these informal international networks successfully influence leaders of different countries to adopt desired standards.
Electronic monitoring of juvenile offenders has become a popular alternative to incarceration. While Kate Weisburd sees its visceral appeal, she says the practice is fraught with problems. Her paper notes the lack of judicial oversight of electronic monitoring, and how it fails to lower incarceration rates, rehabilitate youth offenders, or save costs.
The subjugation of Muslim women is often called a troubling aspect of Islam. Leti Volpp, analyzing the book Do Muslim Women Need Saving?, explains why author Lila Abu-Lughod replies “no.” Volpp’s review says readers are shown how not all women prioritize the same values, and how “rescuing Muslim women” has been used as a disingenuous rationale for war.
Anne Joseph O’Connell confronts the rise of failed nominations and delayed confirmations across recent presidential administrations. Her new article details the impact of this trend, shows how it may be diluting the pool of potential nominees, explores why certain agencies are notably susceptible, and proposes various reforms.
Michael Kiparsky and Nell Green Nylen say conventional tactics for managing stormwater fail to curb pollution hazards caused by runoff. Their report urges more green stormwater infrastructure, which mimics natural water retention and treatment processes to minimize the quantity and maximize the quality of runoff to local waters.
Prasad Krishnamurthy says recent mortgage market reforms focus too much on naïve borrowers and will not adequately protect our economy from another housing bubble. His new paper proposes regulations that would reduce exposure to housing risks by limiting borrowing ratios, debt-to-income levels, and other incentives for large-scale loans.
Pamela Samuelson says the freedom to tinker with technologies can lead to many societal benefits. Her article finds that copyright law—which restricts tinkering rights more than other intellectual property areas—should loosen those controls. In particular, Samuelson questions limitations on the right to modify computer programs.
State legislatures routinely ban a given activity, but allow administrative agencies to authorize it under certain terms. Eric Biber acknowledges the pitfalls that such “permit power” can create, but also notes its many advantages. In particular, his paper says regulatory permits can respond well to many complex environmental problems.
In a paper that won an AALS Section on Criminal Justice Junior Scholar Award, Saira Mohamed challenges claims that mass atrocity crimes are too complex for basic criminal law. She says international courts can use criminal law to create aspirations for human behavior—and help us understand how ordinary people can perpetrate extraordinary crimes.
Google has often been accused of manipulating search results to favor its own services. Professor Daniel Rubinfeld examines the core antitrust issues raised by these allegations in an article he co-authored. The paper just won a 2015 Antitrust Writing Award by Concurrences Journal and its jury of leading international academics.
The explosive riots in Ferguson and Baltimore have roots in racist housing laws, policies and regulations, argues Senior Fellow Richard Rothstein. Without suburban integration, something barely on today’s public policy agenda, ghetto conditions will persist, giving rise to harsh policing and the riots that inevitably ensue.
The Supreme Court ruled that if laws have been enacted to protect a group’s interest, the group does not merit extra judicial protection. In 40 years using that standard, however, the Court has not identified one new vulnerable or “suspect” class. A new paper by Bertrall Ross and Su Li offers a more expansive, reliable standard.
Corporate mergers bring about a 90 percent chance of shareholder lawsuits. Most cases settle for minor disclosuresÂand large attorneys’ fees. A new article co-authored by Steven Davidoff Solomon offers a novel way to assess the value of these disclosures, while lowering litigation costs to benefit shareholders.
As multidistrict litigation (MDL) skyrockets, Andrew Bradt says these cases should be pegged to the plaintiff’s proper home district. Bradt’s approach, cited and adopted in a recent federal case, would allow courts to apply choice-of-law rules from the plaintiff’s original state, yet still permit direct filing.
Chris Hoofnagle’s new book Federal Trade Commission: Privacy Law and Policy probes the agency’s colorful 100-year history. Hoofnagle says the FTC has regulated technology from its inception, contrary to popular belief. He explains how its rules influence our daily lives and provide myriad consumer benefits.
To help lawyers keep pace with a fast-changing practice area, Paul Schwartz has co-authored the third edition of Privacy Law Fundamentals. The book tracks new statutes, cases, and enforcement actions. It also explains key state privacy laws and tackles vital issues such as when federal law preempts state law.
In equal protection cases, David Schraub sees a one-way street that needs two-way traffic. His article notes that while judges consider whether certain minority groups qualify as a “suspect class” deserving of heightened judicial review, they should also reassess such designations as times change. If not, Schraub foresees a constitutional doctrine “past its point of expiration.”
Refuting claims that arrests at all ages usually involve just one person, Franklin Zimring says co-offenders are prevalent in most serious youth crimes. Analyzing single and multiple arrests of different offenses in seven states, Zimring and Hannah Laqueur ’13 write that group behavior has a major impact on adolescent crime.
Bertrall Ross says the Supreme Court’s distrust of the political process has led the justices to treat the state like a witness in its own trial. Ross writes that the court’s partisan blocs overly scrutinize lawmakers’ factual records. He argues that this should occur only when there’s proof of democratic malfunction.
Professor Mary Ann Mason says California’s new anti-discrimination law protecting pregnant grad students could become a model for states across the U.S. Her recent article explains why the law, which orders higher education to abide by Title IX, will help more female students achieve their professional goals.
Grand jury rulings in Ferguson and Staten Island not to indict white police who killed unarmed blacks may reflect trends Ian Haney Lopez noted in 2012. Intentional Blindness tracks a “devolution of equal protection” and jurisprudence “geared toward excluding evidence of the evolving mistreatment of non-Whites.”
While affirmative action may stigmatize students from disadvantaged groups, Prasad Krishnamurthy and Aaron Edlin say group-blind admissions is not the remedy. Erasing social inequality-based stereotypes, their paper argues, would perversely require a higher admission standard for marginalized students.
A report co-written by Steven Davidoff Solomon explains why top plaintiff law firms fare better than their peers in class actions challenging M&A deals. Zealous Advocates or Self-Interested Actors? shows how these firms pursue conflicts of interest, file more documents with the court, and bring more significant motions.
When Ferguson erupted over the police killing of an unarmed black teenager, Sr. Fellow Richard Rothstein investigated how the town became a segregated black suburb. In The Making of Ferguson, he blames old 20th century government housing and zoning policies, among others, as the root of the town’s troubles.
In Intellectual Property, Innovation, and the Environment, editors Peter Menell and Sarah Tran provide insight into the evolving debate over IP law and the environment. The material is considered essential reading for lawyers, economists, and policy-makers working in the fields of energy and climate change.
In his lecture, Our Broken Death Penalty, Judge William Fletcher argues that the practice can’t be repaired and predicts the U.S. will abolish it in time. He says it’s applied erratically, arbitrarily, and unfairly at every rung of the process, from the police investigation to the courts and state execution.
In Awakening the People’s Giant, Asst. Prof. Fred Smith explores the relationship between two constitutional doctrines that have faced withering criticism: sovereign immunity, which protects states from federal lawsuits; and the guarantee clause, which reinforces the principles of representative government.
Disputes over German bonds issued during the Weimar era took decades to resolve, with some cases still in flux. In Back to the Past: Old German Bonds and New U. S. Litigation, Professor Richard Buxbaum follows the trail of these financial instruments and the legal tactics used to settle international claims.
Libraries are reluctant to digitize books whose copyright owners can’t be found, fearful of infringement lawsuits. While some argue for a legislative fix, clinic director Jennifer Urban writes that U.S. Copyright Law’s ‘fair use’ doctrine might offer a more flexible and less costly solution.
In “Land Recording and Copyright Reform,” Professor Molly Van Houweling argues that copyright reformers can look to real property law as a model for reform. For example, she says the copyright system could be improved by incentivizing better record keeping, akin to U.S. land law.
In a paper co-authored by Prof. Katerina Linos and Kimberly Twist, the two discuss results of a survey conducted before and after SCOTUS decisions. Their ‘real-world’ findings show that people are more apt to accept the ruling if they watch news shows that emphasize the court’s majority viewpoint.
In Refracted Justice, Prof. Laurel Fletcher argues that international courts and tribunals consistently frustrate the victims of mass atrocities. In her analysis of transitional justice and victims’ rights, she questions whether the International Criminal Court can live up to its moral commitments.
In Breaking Bad, Prof. Dan Farber examines the government’s reliance on “breakeven analysis” to calculate risks and benefits of agency regulations. He suggests that this type of analysis, although workable on paper, may not be ideal in practice.
In Marriage Equality and Postracialism, Prof. Russell Robinson says the fight for same-sex marriage has aggravated a fissure between black and gay communities. Although the marriage equality movement bills itself as a descendant of the black civil rights movement, he says “it often treats its forefather as dead.”
Prof. David Gamage says the tax provisions of Obamacare will penalize low- and moderate-income workers unless reforms are enacted. In Perverse Incentives Arising from the Tax Provisions of Healthcare Reform, Gamage suggests ways to preserve the act’s benefits, while eliminating its penalties.
In FTC v. Actavis, the U.S. Supreme Court considered antitrust challenges to reverse-payment patent settlements. In Activating Actavis, Prof. Aaron Edlin and his co-authors help clarify the ruling for attorneys and courts involved in antitrust litigation.
Asst. Prof. Prasad Krishnamurthy has co-authored a study of one of the world’s largest food assistance programs in Chhattisgarh, India. The findings contradict popular thought as to which policies increased consumption of food rations. This distinction is critical as India moves to adopt similar programs nationwide.
In Cartels by Another Name, co-author Aaron Edlin notes the dramatic rise in licensed professions. About one-third of U.S. workers are licensed now, up from five percent in the 1950s. State boards decide who can practice, be it doctors or florists. But Edlin says boards often bar competition, resulting in higher prices.
Prof. Elisabeth Semel has led the Death Penalty Clinic to a critical win in a yearlong case against the San Diego D.A.’s office. Weeks ago, the state Court of Appeal granted the clinic’s petition to give a death row inmate access to public records. This is the first time an inmate has won such a ruling against the D.A.
Faculty member Joan Hollinger is the lead author of a brief filed on behalf of 40 law professors opposing Utah’s same-sex marriage ban. The brief offers the 10th Circuit Court of Appeals a thorough understanding of the multiple purposes of marriage and its relationship to procreation and parentage.
In his latest paper, Prof. Prasad Krishnamurthy creates a hypothetical cost-benefit analysis to examine the effectiveness of government banking regulations. In the wake of Dodd-Frank, he looks at specific rules that can help regulators manage risk in the face of market uncertainty.
Prof. Peter Menell proposes a novel way to pre-clear creative works and reduce the risks of relying on the fair use doctrine. The proposal, detailed in Copyright Fee Shifting, encourages copyright owners to take settlement offers seriously and negotiate around inherent uncertainties of the law.
In a law review article, Prof. Mark Gergen challenges the prevailing view of “negligent misrepresentation.” He argues that it’s best understood as a contractual claim. To make this case, he traces debates about contract, tort, and negligence law from the mid-nineteenth century to the present.
In The Significance of Territorial Presence and the Rights of Immigrants, Professor Sarah Song asks how a liberal democracy should treat its noncitizens. She argues that nations need to balance the right to control their borders with the right of people to be treated as equals.
In Behavioral Advertising: The Offer You Cannot Refuse, lead author Chris Hoofnagle finds that advertisers trick consumers into revealing data with tracking techniques users can’t avoid. Even the strongest privacy settings can’t elude the online trackers.
In Democracy and Renewed Distrust, Asst. Prof. Bertrall Ross looks at striking changes in judicial interpretations of the Equal Protection Clause. Ross says SCOTUS now views minority representation in the political process as irrelevant and gives Congress much less leeway in enhancing equal rights.
In Statutory Damages: A Rarity in Copyright Laws Internationally, Professor Pamela Samuelson and co-authors criticize the U.S. for pressuring allies to adopt its own sanctions for copyright infringement. The scholars say countries ought to decide for themselves what damages to impose, if any.
In Privacy in Europe, Professors Ken Bamberger and Deirdre Mulligan offer an “on the ground” look at how companies in Spain, France, and Germany are implementing conflicting privacy laws and regulations. This empirical study offers U.S. and E.U. leaders critical insight as they consider privacy law reforms.
Are we on the brink of an Orwellian future? In 2014: Brand Totalitarianism, professor Peter Menell explores what he describes as a real and present threat to expressive freedom, free will, and public well-being posed by the integration of online advertising, mass media, and the Internet.
In Does Familiarity Breed Contempt Among Judges Deciding Patent Cases, co-authors Jennifer Urban, Su Li, and Mark Lemley come to a surprising conclusion: more experienced judges tend to rule against patent holders. The findings hold across judicial districts.
Professor Stephen Sugarman looks at novel plans to help lower-income families choose private K-12 schools for their children. These Tax Credit School Scholarship Plans offer tax credits to companies or individuals that donate funds to a non-profit group, which in turn provides scholarships to eligible children.
In Shall We Haggle in Pennies at the Speed of Light or in Nickels in the Dark?, Professors Robert Bartlett and Justin McCrary assess the effect of subpenny pricing on equity markets. They argue that some proposals to reform the penny-based system may unintentionally lead to a greater risk of market manipulation.
When competing for a job or VC funding, applicants typically go through elimination rounds. But Professor Suzanne Scotchmer says this technique may reduce the average quality of finalists. She explains why in her paper, Picking Winners in Rounds of Elimination.
In a new paper, Ken Taymor looks at the E.U. regulation of biotech medicines, which are akin to branded drugs whose patents have expired. These “biosimilars” have saved billions for the E.U., but are still off the U.S. market due to FDA inaction.
A paper co-authored by Professor Victoria Plaut finds that women hesitate to study computer science due to the profession’s “nerdy” image. The Stereotypical Computer Scientist blames the media for perpetuating that outdated view, which can have a chilling effect on women interested in the field.
In Are Gardens, Synthetic DNA, Yoga Sequences, and Fashions Copyrightable?, Professor Pamela Samuelson offers criteria for courts to use when judging whether a creative work is copyright protected. She explores how unconventional works, from tattoos to computer chip designs, fare under these criteria.
In Human Rights Backsliding, co-authors Andrew Guzman and Katerina Linos question the idea that international human rights norms always lead to greater protections. Although effective in moderate democracies, they say such norms may lead to fewer protections, not more, in stable democracies.
In Climate Policy in a System of Divided Powers, Professor Dan Farber argues that states and the executive branch can act on environmental mitigation efforts in place of a deadlocked Congress. Farber looks at the constitutional issues in areas where “the Supreme Court has not been a model of clarity.”
Urban water systems are in decline. But Berkeley Law’s Michael Kiparsky says that technology is only part of the solution. A new article he co-authored says engineers must first understand the cultural, economic, and political mechanisms that both hinder and enable innovation.
China has created 95 environmental courts since 2007, but prosecutors are suing low-level rule-breakers far more than major polluters, a new study by faculty member Rachel Stern shows. Stern found that most offenses stem from poverty, mistake, or bad luckÂand that most defendants lack education and legal representation.
Professor Paul Schwartz proposes a way to bridge the gap between U.S. and E.U. privacy laws. In Reconciling Personal Information, Schwartz and his co-author argue for a tiered approach to “personally identifiable information” that’s consistent with the principles of both regimes.
Ty Alper thinks the Supreme Court is moving closer to recognizing a right of noncapital defendants to raise claims of ineffective trial counsel. In a recent paper, Alper argues that this development vindicates the bedrock principle embodied in Gideon v. Wainwright.
A new International Human Rights Law Clinic report lays the groundwork for legal reform to combat sexual violence against men during armed conflict. Using Uganda as a case study, the report examines legal remedies and touts international criminal justice as the best vehicle for progress.
In The Democratic Foundations of Policy Diffusion, Katerina Linos offers a new theory of how legal reforms spread worldwide. It’s not elite technocrats that instigate change, Linos says, but citizens, political leaders, and NGOs. Read more on the Opinio Juris symposium.
Tax expert David Gamage writes that key reforms are needed to prevent Obamacare from hurting low- and moderate-income workers. If not, he says businesses may shift some full-time workers to part-time and cut their salaries to circumvent the employer mandates.
Professor Stephen Sugarman analyzes scholarships funded by state tax credits that allow low- and modest-income families to send children to private schools in grades K-12. The article, which also compares such scholarships to voucher plans, will appear in the Journal of Law and Education.
Assistant Professor Andrew Bradt’s recent paper analyzes multidistrict litigation. This legal area is exploding, due largely to U.S. Supreme Court decisions limiting class action suits. But Bradt says lawyers need to understand “choice-of-law” rules for each claim, or risk jeopardizing their client’s case.
Assistant Professor Karen Tani’s research explores the legal backbone of the U.S. welfare state. She won a Hellman Fund award for her project on welfare, rights, and governance; and a related article “Welfare and Rights Before the Movement” recently appeared in the Yale Law Journal.
A leading national survey has named Professor Robert Bartlett’s article, Making Banks Transparent, one of the top ten corporate and securities law articles of 2012. Bartlett argues that basic credit risk modeling combined with mandatory bank disclosures would help prevent another round of severe banking crises.
In The Problem of Environmental Monitoring, Professor Eric Biber critiques the way agencies collect and analyze data about our natural environs. He argues that the practice, although critical to the development of environmental laws and regulations, is inherently flawed. The article will appear in the Land Use and Environmental Law Review.
Melissa Murray’s prize-winning paper What’s So New About the New Illegitimacy debunks the idea of an improved legal climate for out-of-wedlock births. If anything, illegitimacy is making a political comeback. Liberals call it an injury forced upon kids of same-sex couples, but Murray warns against using it as an argument for marriage equality.
In an article, Industry self-governance: A new way to manage dangerous technologies, co-author Stephen Maurer suggests that private firms can often regulate the sale and purchase of chemical, biological and nuclear weapons more effectively than governments. He says treaties to regulate this trade take too long to create and often go unenforced.
An article by Kate Jastram examines the legal plight of Haitian children whose dangerous escape by sea from their impoverished homeland ended in military custody on Guantanamo. Jastram argues that it was the Haitian refugees’ legal struggles that set the stage for the post-9/11 litigation over what rights, if any, could be claimed by non-U.S. citizens held there.
An article by Kenneth Bamberger and Deirdre Mulligan, PIA Requirements and Privacy Decision-Making in US Government Agencies, has been cited as one of the best works of recent scholarship relating to corporate law. The professors examine tensions between the bureaucratic drive for security and efficiency versus the need to comply with privacy regulations.
Contrary to popular belief, Professor David Sklansky argues that evidentiary jury instructions probably do work, albeit imperfectly. In a law review article, he suggests studying when they’re most likely to failÂand how to improve them. He also says we need to accept that juries are not common oracles, but flawed groups of people capable of reason.
Professor Harry Scheiber is the editor of Regions, Institutions, and Law of the Sea: Studies in Ocean Governance. This publication of papers from the Law of the Sea Institute’s international conference in Seoul, Korea includes a timely analysis of laws involving piracy, geo-engineering, shipping operations, and more.
Assistant Professor Rachel Stern’s new book, Environmental Litigation in China, seeks the improbable: legal relief for pollution in a country known for tight political control. Stern argues that litigation can contribute to social change in China and support a nascent environmentalism.
Professor Pamela Samuelson examines a ”troublesome” phrase within the Copyright Act that limits derivativescreative works based on pre-existing material. In a journal article, she argues that the act was designed to reduce, not expand, protections of original works in an effort to promote innovation and competition.
A new paper by Professor Richard Buxbaum takes a fresh look at reparations through a seminal event: payments for World War II atrocities. Buxbaum says the failure of states to negotiate just compensation for victims of that war has led to individual claims filed under the umbrella of international human rights law.
A report by Berkeley Law’s Human Rights Center describes how hi-tech tools and science can advance criminal investigations and prosecutions at the International Criminal Court. Beyond Reasonable Doubt stems from a workshop at The Hague on the use of DNA analysis, remote sensing, digital evidence, and more.
In his paper, How Democracy in Arab States Can Benefit the West, Jamie O’Connell says emerging democratic Arab nations could reduce the risk of terrorist attacks and bolster economic alliances.Â O’Connell urges the West to study the nuances of individual Arab states and the preferences of their citizens.
Nearly half of all U.S. university or college students fail to graduate within six years. A new report by a coalition of national leaders, including Berkeley Law Dean Christopher Edley, Jr., recommends a solution: overhauling financial aid programs to increase higher-ed access, affordability, and completion.
JSP Program scholars are emerging as influential thought leaders in socio-legal theory. The new issue of Law & Society Review features articles by student Ashley Rubin and Lynette Chua ’11, reviews of books authored by Kaaryn Gustafson ’97 and Chrysanthi Leon ’06, and book reviews by Hadar Aviram ’05 and Tom Ginsburg ’97.
In his latest article, Assistant Professor Stavros Gadinis describes how the 2007-08 worldwide economic crisis has led to greater political oversight of independent financial institutions. But he warns that such involvement by elected politicians might actually endanger international financial markets, not stabilize them.
In an article on China’s environmental protection efforts, Professor Alex Wang says the regime’s primary focus is economic growth and stabilityÂnot true reform. Wang believes greater public supervision is vital to prevent bureaucrats from routinely falsifying information and shutting down pollution controls.
The fair use doctrine allows limited use of copyrighted material, but artists are wary of its inherent uncertainty and the harsh penalties for copyright infringement. ProfessorÂ Peter Menell proposes a fee-shifting solution that clarifies usage rights and offers incentives to resolve disputes quickly.
A new study by Professor Justin McCrary suggests that U.S. cities may want to hire more cops. McCrary found that every dollar spent on police reduces victimization costs by about $1.60. The data also show that police are more effective at reducing violent crime than property crime.
The 2011 America Invents Act (AIA) revamped some key rules in the U.S. patent system. In Priority and Novelty Under the AIA, Professor Robert Merges describes the seismic shift from “first-to-invent” to “first-to-file” and helps patent applicants navigate the new legal landscape.
In The Forgotten Core Meaning of the Suspension Clause, Professor Amanda Tyler explores the historical record to determine what our country’s founders meant by the Writ of Habeas Corpus. Her findings call into question the constitutionality of detaining U.S. citizens as so-called “enemy combatants” in the wake of 9/11.
The National Security Agency illegally tracks the electronic communications of millions of innocent Americans, according to an amicus brief filed by the Samuelson Clinic. Countering claims that litigation would reveal state secrets, the brief refers to existing procedures for reviewing sensitive evidence.
A new study led by Taeku Lee shows that Asian-American voters favor Barack Obama over Mitt Romney 43% to 24%, but nearly one-third are undecided. This cohort could be a potent voting bloc: the Asian-American population grew faster than any other group (46%) between 2000 and 2010, and one in six lives in a swing state.
Senior Fellow Richard Rothstein disputes an argument by educator Joel Klein that poverty has little to do with poor school performance. Rothstein’s new article points out that Klein, who cites his childhood in “public housing” as proof, actually grew up in projects that were restricted to middle-class families.
A study of consumer attitudes by Chris Hoofnagle, Jennifer Urban, and Su Li finds that most Americans oppose any collection of data about their online activities. The Berkeley Law trio fault both the ad industry’s proposed self-regulatory guidelines and the federal “Do Not Track” proposal. Read the New York Times story here.Â
Assistant Professor Stavros Gadinis’ study of SEC enforcement actions against broker-dealers is getting national attention. Results from the first such systematic examination in 30 years reveals that size matters. Larger firms fare better than smaller ones, which face tougher SEC sanctions.Â
An article co-written by Professor Victoria Plaut argues that our sense of well-being is influenced markedly by our home city. In studies comparing San Francisco and Boston, she finds that San Franciscans value innovation and egalitarianism, while Bostonians prioritize tradition, community, and tighter social norms.
A new study by Professor Eric Biber finds that public citizens are better at pinpointing endangered species than the Fish and Wildlife Service. A Science magazine article co-written by Biber about the study caught the attention of the New York Times, which published an editorial on the topic.
Cops typically arrest and jail criminals; they rarely help released prisoners navigate the return home. But a paper co-authored by Sarah Lawrence, a director at Berkeley Law’s Warren Institute, says an active police role in prisoner reentry could help reduce crime and recidivism in poor communities.
Legal services programs help more than one million low-income clients annually, yet scant evidence exists about their efficacy.Â In a new Yale Law JournalÂ essay, clinical law professor Jeffrey Selbin calls for empirical researchÂ to help improve and expand theÂ delivery of legal services to clients in need.
The Yale-Harvard-Stanford Junior Faculty Forum selected Asst. Prof. Bertrall Ross’s new paper to discuss at its recent annual conference. Ross argues that the Supreme Court uses nuanced standards to assess whether electoral laws dilute racial minorities’ votes, even though equal protection claims require proof of intentional discrimination.
African Americans make up 14 percent of the U.S. population, but 44 percent of those who are HIV-positive, while Latinos have triple the infection rate of whites. In a new paper, co-author Russell Robinson says structural inequities, not high-risk behavior, create the wide disparities in rates and outcomes of minorities with HIV/AIDS.
Residential buildings account for about 20 percent of U.S. greenhouse gas emissions. A new report by Lori Bamberger, senior fellow at the Berkeley Center for Law and Business, lays out a plan for significantly increasing the pace of energy efficiency efforts in California’s existing single-family homes.
A new national survey by Berkeley Law’s Jennifer Urban ’00, Chris Hoofnagle, and Su Li found that Americans overwhelmingly consider information stored on mobile phones to be private. The vast majority of about 1,200 adults surveyed also rejected collection of mobile phone data for coupons, ads, telemarketing, and more.
A new report by the International Human Rights Law Clinic, Sexual Diversity in El Salvador, finds rampant abuse and discrimination against the LGBT community. Written by Clinical Instructor Allison Davenport, the report recommends stronger legal protections for that country’s transgender individuals.
The 100 most popular websites track their users online, and reliable ways to measure this activity are vital as policymakers confront consumer privacy concerns. A new Web Privacy Census, co-developed by Berkeley Law’s Christopher Hoofnagle, attempts to do just that, by measuring online tracking over time.
In a new paper, American Youth ViolenceÂA Cautionary Tale, Professor Franklin Zimring examines criminal trends since 1975 and finds catastrophic errors in juvenile crime projections.Â He argues that adolescent violence has arrived at a “new normal” and that the volatile swings of the ’80s and ’90s are over.
A new report by Berkeley Law’s Chief Justice Earl Warren Institute on Law and Social Policy gives failing marks to California’s continuation high schools. Designed to help at-risk students, the schools too often serve as “dumping grounds” for disruptive teens.
Professor and Director of the Haas Diversity Research Center, john a. powell is the author of a new paper on poverty and race. Powell writes that in a mature democracy, poverty is “about social exclusion and the lack of belonging, not material inequality.” He argues that exclusion, often due to racial differences, is key to understanding and addressing poverty.
Information privacy law expert Chris Hoofnagle, Samuelson clinic co-director Jennifer Urban, and statistician Su Li surveyed consumers about purchasing goods and services with mobile phones. In a new paper, Mobile Payments: Consumer Benefits & New Privacy Concerns, the co-authors report that Americans overwhelmingly oppose cell phone payments that let retailers track their locations or obtain their contact info.
In Framing Cultural Difference: Immigrant Women and Discourses of Tradition, professor Leti Volpp argues for a better understanding of immigrant culture. Volpp says we assume that immigrant women will be emancipated when they have abandoned their cultures. But she proves this theory wrong through the work of domestic violence advocacy groups, expert testimony in a case of attempted parent-child suicide by a Sikh immigrant, and more.
Assistant Clinical Professor Jennifer Urban co-authors a Science article calling for the publication of software created during publicly-funded research. The authors argue that the release of open source code would yield substantial benefits including improved code quality, while allowing for adequate peer review and experimental reproduction.
The Human Rights Center has released a new report on the impact of Kenya’s Sexual Offences Act. The 2006 law was designed to stop that country’s sexual and gender-based violence often triggered by contentious national elections. The report concludes with a series of recommendations including the formation of a permanent government body to oversee implementation of the act.
People who sign petitions are more likely to vote than non-signers. That’s troubling news for Gov. Scott Walker in Wisconsin’s June special election, triggered by a recall petition with 1 million signatures. A new study co-authored by Shayne Henry ’14 is the first to match ballot petitions with official voter records.
Plaintiffs who base employment discrimination suits on multiple claims, such as race and age discrimination, are twice as likely to lose as those who cite just one claim. A new report co-authored by professor Lauren Edelman ’86 is the first systematic empirical analysis of this issue, tracking 35 years of federal decisions.
Justin McCrary is the co-author of a paper that analyzes juvenile criminal data. “Youth Offenders and the Deterrence Effect of Prison” finds that young criminals are not deterred by harsher punishments as they grow into adulthood. The co-authors predict that reforms to move juveniles to adult criminal courts will also fail to deter their criminal behavior.
Professor Melissa Murray’s award-winning article, Marriage as Punishment, has just been published in the Columbia Law Review. Murray finds that the romantic notion of marriage as bliss contradicts its historic role. Until the mid-20th century, marriage was seen as punishment for the crime of sexual seduction; it transformed sexual outlaws into in-laws.
American cities are going broke. Some are dying off, leaving ghost towns in their wake. Others are closing city offices and disincorporating. A new article by assistant professor Michelle Wilde Anderson explores how this trend affects issues such as governance, race, and community.Â
Despite Bank of America’s $335 million settlement of a racial discrimination in mortgage lending claim against its Countrywide subsidiary, problems persist. A new paper by Berkeley Law’s Richard Rothstein says such discriminatory practices are standard and that regulators have sanctioned them for nearly a century.
In a new quarterly column, professor David Gamage argues that restrictions on state tax hikes, or “tax increase limitations,” can be easily evaded. He says the term “tax increase” in this context is meaningless, and that California’s legislature can thus circumvent rules requiring a two-thirds vote.
Protection of personal data plays a key role in privacy law, especially if “Personally Identifiable Information” (PII) is involved. But professor Paul Schwartz says the current use of PII is misguided, putting our identities at greater risk. He proposes a new approach called “PII 2.0.”
Napa’s wine industry has long benefited from laws protecting agricultural land. An article co-authored by Richard Mendelson, director of Berkeley Law’s Wine Law and Policy Program, explains area voting requirements for re-designating such land and the impact of strict controls on local property taxation. Read it here.
Professors Calvin Morrill and Lauren Edelman ’86 have co-authored the first empirical study on how law impacts daily life in high schools. The award-winning article reveals that students and teachers rarely file suit or pursue mediation after a rights violation.
Two faculty members explore the link between citizenship and inequality in an online symposium produced by Issues in Legal Scholarship, of which professor Dan Farber is editor-in-chief. Professor Leti Volpp edited and wrote an introduction for the symposium, “Denaturalizing Citizenship,” which dissects two leading books on the issue. Professor Sarah Song penned a chapter called “Rethinking Citizenship through Alienage and Birthright Privilege.”
How should government research subsidies be allocated: What percentage should go to commercial firms and how much to academia? Should the law protect knowledge created by university research? In a paper presented to the American Economic Association, Professor Suzanne Scotchmer suggests a mix of subsidies that would enable university researchers to focus on ideas, while for-profits focus on innovations.
Are courts accepting workplace anti-discrimination policies at face value even when they’re ineffective? A new study co-authored by ProfessorÂ Lauren Edelman ’86, former faculty member Linda Krieger, Scott Eliason, ProfessorÂ Catherine Albiston ’93, andÂ VirginiaÂ Mellema ’87 reveals a disturbing trend of “judicial deference to institutionalized organizational structures” that undermines civil rights law.
Should government rescue a bank that’s “too big to fail?” In A Model of Optimal Corporate Bailouts, Eric Talley analyzes the pros and cons, weighing social gain against financial risk. Talley and co-authors explore when (and if) bailouts are justified and propose a model for analyzing the tradeoffs.
A new study by Professor Robert MacCoun finds that Dutch teens smoke less weedand have a harder time getting itthan U.S. youth. The findings are surprising, given Hollands numerous adults-only clubs where pot is plentiful. Read more here.
In a new article, Diffusion through Democracy (American Journal ofÂ Political Science), Assistant Professor Katerina Linos examines why international norms can often trigger major national legal reforms.Â Read about it here.
In the wake of Governor Jerry Brown’s plan to move prisoners to county jails, California could be one of the first states to close its state-run youth facilities. A policy paper by criminal justice expert Barry Krisberg, who heads the Warren Institute on Law and Social Policy, reviews California’s progress in juvenile prison reform and the challenges that remain.
Consumers typically don’t read contracts, blissfully unaware of hidden traps. The result can be nasty: subprime mortgage crisis, anyone?Â Assistant professors Victoria Plaut and Robert Bartlett tackle this issue within a notorious domain: Internet click-through agreements.Â Their article suggests ways to increase readershipÂ so consumers can avoid contract pitfalls.
Attorney and wine law expert Richard Mendelson, who established Berkeley Law’s Program on Wine Law and Policy, has published a new book. Called “Wine in America: Law and Policy,” the book explains the federal, state, and local laws that govern wine production, taxation, marketing, distribution, and sales. It’s the first textbook on wine law and policy in the U.S.
New York’s High School Regents Exams are plagued with “pervasive,” but probably altruistic, manipulation of borderline student test scores, a study by Professor Justin McCrary has found. Along with three co-authors, McCrary finds evidence that teachers boost scores just enough to push students over key “performance thresholds.” (Photo by Newsday)
City street designs contribute to greenhouse gas increases by discouraging foot traffic, bicycles, and transit use, a new report from Berkeley Law’s Center for Law, Energy and the Environment says. In the City Streets Project report, the authors examine the basis for regrettable street design habits, and consider better alternatives.
Should intangible itemscreations by musicians, authors, inventorsbe protected by property rights? Skeptics emphasize the need for free and open access to knowledge. But in a forthcoming book, Berkeley Law’s Robert Merges crafts an original theory to explain why IP rights reward effort and encourage individuals to strive.
Commentators often bemoan how petitions and citizen suits drive the agendas of environmental agencies. But assistant professors Eric Biber (Berkeley Law) and Berry Brosi (Emory University) examine U.S. Endangered Species Act petitions and conclude that the public often helps agencies make better decisions.
The challenges shaping the life chances of boys and young men of color are well-documented but still shocking. A new book, edited by Dean Edley and Jorge Ruiz de Velasco sheds lightÂ onÂ the urgent need to understand the factors that affect young men and boys of color as they make critical decisions in their lives.
What happens when individuals leave prison and return to their communities? Too often, they face unemployment and low wages. In a new report, the Berkeley Center for Criminal Justice argues that California can do better at finding job opportunities for the growing number of people with criminal records.
When is the right time to object to how you are going to die? The question looms large for thousands of death row inmates.Â Assistant Clinical Professor Ty Alper examines how courts have begun to dismiss method-of-execution challenges based on statute-of-limitations grounds. He proposes a new approach.
How much does immigration contribute to the crime problem in California? Immigration has increased steadily in the state,Â notes Senior Fellow Barry Krisberg. But “crime has shown a large and steady decline in California.”Â In his new study, Krisberg findsÂ no evidence linking immigration toÂ a “crime emergency.”Â
How do Family and Medical Leave Act rights operate in practice in the courts and workplace? Professor Catherine Albiston examines how institutions and social practices transform the meaning of these rights to recreate inequality. In her new study, “Rights on Leave,” Albiston says workplace rules, norms and assumptions constrain social change.