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.