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.