Intellectual Life Workshop
1/11/2023
3:00:00 PM to 4:00:00 PM
401 E. Peltason Drive, Suite 1000, Irvine, CA 92697-8000
UCI Law welcomes Davina Cooper, Research Professor in Law & Political Theory at King's College London, to discuss, "Should the Law Recognize Multiple Genders or None? Exploring the Stakes and Challenges in Radically Reforming Sex/Gender Classification."
This talk explores how the law should respond to gender identity. In many countries, governments and laws are making gender-transitioning easier or recognizing new gender identities such as nonbinary. Is this the right approach or would it be better if the law stopped registering gender and sex altogether? Can law do this, and still address gender-related inequalities and other forms of injustice?
Through four years of extensive funded research, the Future of Legal Gender Project explored the implications of abolishing legal sex and gender status in Britain. This talk explores the findings and conclusions of the project (read the final report here). It traces arguments made by those opposed to reform, explores other ways of understanding these arguments - to see them as prompts for more radical change rather than obstacles - and considers the value of 'slow law'.
Davina Cooper who led this research project is a Research Professor in Law & Political Theory at King's College London. Professor Cooper is an interdisciplinary law and society scholar whose work focuses on radical governance, utopian practices, sexual politics and new conceptual methods. She is the author of 6 books including Feeling Like a State and Everyday Utopias (Duke UP) and Challenging Diversity (CUP). She directed the AHRC Research Centre for Law, Gender & Sexuality, and has been a local magistrate and a local politician in London, where she played a prominent role in the 1980s development of British lesbian and gay equality initiatives.
9/22/2022
12:00:00 PM to 1:00:00 PM
401 E. Peltason Drive, Suite 1000, Irvine, CA 92697-8000
The UCI Law Guest Speaker Series host "Civility Matters," including panelists Justice William Bedsworth, Judge Nancy Zeltzer, and Orange County attorney Jeff Braun. Two judges and an attorney will lead a discussion on the critical importance of lawyers acting ethically and civilly. All three are members of the American Board of Trial Advocates (ABOTA), an organization whose goal is to foster the improvement of the skills and ethics lawyers around the country and to educate the public about the right to trial by jury in civil cases.
9/15/2022
12:00:00 PM to 1:00:00 PM
401 E. Peltason Drive, Suite 1000, Irvine, CA 92697-8000
The UCI Law Guest Speaker Series will feature award-winning author Ronnie Greene. He will be discussing his new book, "Heart of Atlanta: Five Black Pastors and the Supreme Court Victory for Integration," a compelling story about the first legal challenges to the 1964 Civil Rights Act.
9/1/2022
12:00:00 PM to 1:00:00 PM
401 E. Peltason Drive, Suite 1000, Irvine, CA 92697-8000
The UCI Law Guest Speaker Series welcomes Morgan Chu, Partner at Irell & Manella in Los Angeles.
Morgan Chu is one of the nation's leading intellectual property lawyers. The legal magazine Chambers USA said that Morgan is "beyond doubt the most gifted trial lawyer in the USA", delivering "staggering results for clients." He was the lead trial counsel in cases that have led to verdicts totaling more than $9 billion. In one case, he secured a $2.1 billion verdict after persuading a jury that Intel Corp. infringed on VLSI Technology's patents for nearly a decade. In another instance, a jury awarded $565 million to Morgan's client City of Hope, a Southern California medical treatment and research center, after concluding that Genentech had failed to pay royalties on billions of dollars of sales made by third party companies that obtained patent licenses from Genentech for a City of Hope invention. The invention enabled the widespread production of genetically-engineered medicines for the treatment of diabetes, cancer and other diseases. Morgan argued and won a 9-0 U.S. Supreme Court decision that helped patent applicants filing appeals. He is regularly named one of the country's most influential lawyers and cited for his extensive pro bono work. Just last year, Morgan and his wife, Helen, donated $1 million to Los Angeles-based Public Counsel to support the organization's work to secure justice for the underserved.
8/25/2022
12:00:00 PM to 1:00:00 PM
401 E. Peltason Drive, Suite 1000, Irvine, CA 92697-8000
The UCI Law Guest Speaker Series welcomes Brooke Weitzman, Co-Founder and CEO of the ELDR Center.
Although she graduated from UCI Law only seven years ago, Brooke Weitzman already has established a strong professional record of helping those who need it most. After working for two years at Orange County’s Public Law Center as an Equal Justice Works Americorps Fellow, Brooke, along with veteran Legal Aid attorney Bill Wise, founded the Elder Law and Disability Rights Center in Santa Ana. The non-profit firm’s focus is on increasing access to justice for low-income individuals. Her Center provides free clinics and low cost services to senior citizens on elder abuse and end-of-life care, helps veterans obtain benefits, and has been in the forefront of the battle to make housing a human right. Brooke has played a key role in major federal litigation regarding the unhoused in Orange County and Los Angeles County, and her work has drawn notice around the country. The American Bar Association already has cited Brooke as one of 40 young lawyers in the ABA’s On the Rise list. Brooke also is active in the local Thurgood Marshall Bar Association, the National Lawyers Guild, and the UCI Law Alumni Association. While at UCI Law, Brooke completed 430 hours of pro bono work.
7/27/2022
12:00:00 PM to 1:00:00 PM
401 E. Peltason Drive, Suite 1000, Irvine, CA 92697-8000
Sameer Ashar
Clinical Professor of Law
Associate Dean for Equity Initiatives
Clinical Legal Education, Law and Social Movements, Labor Law, Immigration Law, Legal Profession
Ji Li
John & Marilyn Long Professor of US-China Business and Law
Chinese Law and Politics, International Business Transactions, Comparative Law, Contracts, Empirical Legal Studies
Professor Ashar will be presenting his paper, “Pedagogy of Prefiguration.”
Abstract:
In the last decade, in the teeth of the breakdown of the neoliberal political order, accelerating climate change, and the rise of neo- fascist and white supremacist movements, left movement formations in the United States have generated radical revisions of social, political, and legal structures. The perilous moment in which we find ourselves demands radical experimentation with new institutional and social forms. Those experimental forms are, because of the overwhelming power of capital and the disciplining force of the state in this moment, relatively small in scale or narrow in application. But they are also prefigurative in that they implement new institutional arrangements and imagine more just and equal social relations on a wider scale. Law clinics, especially, have the potential to advance prefiguration. This essay will unearth the utopian aspirations of clinic design and pedagogy undertaken in conjunction with social movement formations. It will focus on one field of contention in particular: the racialized labor extraction of migrant workers.
Professor Li will be presenting his paper, “Implicit Racial Bias in Legal Service Consumption?”
Abstract:
This paper will investigate possible racial bias in people when they consider the purchase of legal services. Based on a survey experiment using different racial profile pictures to test the probability of positive responses from the potential service purchasers, its preliminary hypothesis is that consumers are more likely to respond to advertisements containing a white lawyer picture than to those with minority lawyer pictures. The test will include a series of variables, so even if the racial bias hypothesis is not affirmed, it may identify other possible associations between the service purchase preferences and key consumer attributes.
7/20/2022
12:00:00 PM to 1:00:00 PM
401 E. Peltason Drive, Suite 1000, Irvine, CA 92697-8000
Swethaa Ballakrishnen
Assistant Professor of Law
Legal Profession, Gender, Critical Feminist and Queer Theory, Global Souths, India
Stephen Lee
Professor of Law
Associate Dean for Faculty Research and Development
Administrative law, immigration law
Professor Ballakrishnen will be presenting their book chapter, “Making it Halal: Blasé Discrimination and the Construction of the ‘Good’ Muslim Lawyer.”
Abstract:
The performance and negotiation of lawyer identity has long been used as a focus point to understand the lived experience of discriminating categories. This Chapter uses the case of Muslim lawyers in the United States to unpack the ways in which professional and political identities intersect and co-emerge at a time when these categories are in states of flux. Although scholarship has reinforced the myriad ways in which identity capital within the legal profession is built and valorized, religion complicates the analysis because it involves the performance of not just an individual’s identity, but also its additional interaction with law’s neutrality and its presumptions – despite enough evidence to the contrary – of secularity. Islam further exposes cleavages in these intersectionalities because of the way this particular religious identity is gendered, raced, and read, especially in the global north, often under the violent pretense of “liberal” progress.
Professor Lee will be presenting his book chapter, “The Racialization of Restaurant Workers.”
Abstract:
Racial justice scholarship in the food context has focused mostly on the harms felt on the consumption side of food—that is, the food system’s failure to provide enough good and healthy food options for consumers of color especially within poor communities. This chapter seeks to broaden our lens of analysis to consider both the consumption and the supply side of our food system—the indignities, peril, theft, mayhem, and sometimes death experienced by those who produce and serve our food at multiple links in the food chain. In doing so, this book chapter focuses on how federal wage laws deter but also contribute to the racialization of one particular class of food workers, namely restaurant workers.
6/29/2022
12:00:00 PM to 1:00:00 PM
401 E. Peltason Drive, Suite 1000, Irvine, CA 92697-8000
Distinguished Professor of Law
Civil Rights, Education Law and Policy, Higher Education and Affirmative Action, Latino-Related Law and Policy, Legal Education, Torts
Professor Moran will be presenting her paper, “Liberty, Equality, and the Complications of Pluralism” (a review of Sahar Aziz’s book, The Racial Muslim: When Racism Quashes Religious Freedom (UC Press, 2021)).
Abstract:
Constitutional law scholar Laurence Tribe once described due process and equal protection as “a legal double helix.” By this, he meant that protections for substantive liberties coupled with principles of equal treatment created “a single, unfolding tale of equal liberty and increasingly universal dignity.” In his view, equality and liberty were mutually constitutive and “center[ed] on a quest for genuine self-government of groups small and large.” Although this optimistic account of the nation’s constitutional DNA is reassuring, Professor Sahar Aziz’s new book on “The Racial Muslim: When Racism Quashes Religious Freedom” reminds us that the double helix can unravel, so that freedom and equality become mutually destructive. Far from enjoying self-government, some minority groups have seen that “racism intersects with religion to racialize a religion’s followers and consequently exclude them from the panoply of religious freedom.”
Professor Aziz’s book raises important questions about whether a narrative of racialization fully captures the dynamics of the Muslim experience. It is not clear why race, as opposed to traits like national origin, immigration status, and religion, should be the dominant force that drives government policy, private bias, and Muslims’ self-conceptualization. This is especially true given the tremendous internal heterogeneity of the Muslim community as well as the rise of powerful new ways to surveil and control its members through tools like immigration enforcement. Framing the Muslim experience in racial terms may obscure the proliferation of difference and the pluralism anxiety it fosters. That anxiety in turn can prompt a retreat into individualism. Americans may “hunker down” in the face of growing diversity, while courts retreat from equality jurisprudence and turn to seemingly universal principles of personal liberty.
6/14/2022
3:00:00 PM to 4:00:00 PM
401 E. Peltason Drive, Suite 1000, Irvine, CA 92697-8000
Chancellor’s Professor of Law and Political Science
International Law and International Trade and Investment Law
Professor Shaffer will be presenting his paper (with Professor Wayne Sandholtz), “The Rule of Law Under Challenge: The Enmeshment of National and International Trends.”
Abstract:
In a period of rising threats to constitutional government within countries and among them, it is a crucial time to study the rule of law in transnational context. This paper defines core concepts, analyzes the relation of national and international law and institutions from a rule-of-law perspective in light of these concepts, and assesses the extent to which rule-of-law practices are shifting at the domestic and international levels in parallel. The paper is in five parts. Part I examines our conceptualization of the rule of law in light of contemporary problems and debates, necessary for the orientation of empirical study and policy responses. Following Martin Krygier, we formulate a teleological conception of the rule of law in terms of goals and practices, which, in turn, calls for an assessment of institutional mechanisms to advance these goals given varying social conditions and contexts. We conceive of the rule of law as an ideal—or meta-principle—under which individuals are not to be subject to the arbitrary exercise of power, whether by the state or private actors. Part II sets forth the ways in which international law and institutions are important for rule-of-law ends, as well as their pathologies. Part III examines empirical indicators of the decline of the rule of law at the national and international levels. Part IV examines what might be done given these shifts in rule-of-law protections. Part V briefly concludes, examining the implications of viewing the rule of law in transnational context for conceptual theory, empirical study, and policy response.
4/13/2022
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Jack Lerner
Clinical Professor of Law, UCI Law
Copyright, privacy, technology, media law, patent law, intellectual property, freedom of expression
3/30/2022
12:00:00 PM to 1:00:00 PM
Law 3500
Menesh Patel
Acting Professor of Law, UC Davis School of Law
Antitrust, empirical corporate and securities law
Professor Patel will be presenting his paper, “Fraud on the Cryptomarkets.”
3/23/2022
12:00:00 PM to 1:00:00 PM
Professor of Law, UCI Law
Tax Administration and Compliance, Taxation of Business Entities, Taxpayer Privacy and Tax Transparency
Professor Blank will be discussing his paper, The Inequity of Informal Guidance (co-authored with Leigh Osofsky)
Abstract:
The co-existence of formal and informal law is a hallmark feature of the U.S. tax system. Congress and the Treasury enact formal law, such as statutes and regulations, while the Internal Revenue Service offers the public informal explanations and summaries, such as taxpayer publications, website frequently asked questions, virtual assistants, and other types of taxpayer guidance. Throughout the COVID-19 pandemic, the IRS increased its use of informal law to help taxpayers understand complex emergency relief rules implemented through the tax system.
In contrast to many other legal scholars who have examined important administrative law issues regarding informal tax guidance, in this Article, we reframe the topic as a social justice issue. We argue that the two tiers of formal and informal law in the U.S. tax system systematically disadvantage taxpayers who lack access to sophisticated advisors. This imbalance occurs irrespective of whether the IRS’s informal law contains statements that, if taxpayers followed them, would be taxpayer favorable or unfavorable. When the guidance contains taxpayer-favorable positions, the IRS is not legally bound by these positions and, during an audit, can contradict or ignore them. But when the guidance contains taxpayer-unfriendly positions, taxpayers who rely on them are bound to these interpretations as a practical matter. Worse yet, these taxpayers have almost no protection against tax penalties for incorrect positions that they claim based on the IRS’s tax guidance. By contrast, taxpayers who can access and apply the formal sources of tax law, such as the Internal Revenue Code and Treasury regulations, often through lawyers, are in a significantly better strategic position. They can rely on binding law, they can try to take the most advantageous positions possible, and, if they meet a relatively low bar of reasonableness, they will have penalty protections in doing so.
After highlighting the growing gap between formal and informal tax law, and the resulting, systemic inequity it causes, we explore potential policy approaches to address it. We consider reforming the drafting of the formal tax law; changing the drafting of informal tax law to include warnings to taxpayers and cross- references to formal tax law; revising the law regarding taxpayer reliance on informal tax law; and developing IRS research on how reliance on informal tax law varies based on taxpayers’ income, filing status, race, and other personal characteristics.
3/16/2022
12:00:00 PM to 1:00:00 PM
Mehrsa Baradaran
Professor of Law, UCI Law
Banking law, contracts, property, housing, inequality
Professor Baradaran will be discussing her book manuscript, The Legal Coup.
Professors Summer Kim and Ann Southworth will serve as commentators.
3/9/2022
12:00:00 PM to 1:00:00 PM
Franita Tolson
Professor of Law, USC Gould School of Law
Election law, constitutional law, legal history and employment discrimination
This event will be virtual. More information to come.
1/26/2022
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Aslı Ü. Bâli
Professor of Law, UCLA Law
Public international law, comparative constitutional law
Professor Bâli will be presenting her paper, “From Revolution to Devolution? Dilemmas of Decentralization in the Middle East.” This event will be virtual.
1/12/2022
12:00:00 PM to 1:00:00 PM
Bernard D. Meltzer Professor of Law, The University of Chicago Law School
Criminal law and procedure, social norms, the expressive function of law, inequality, law and literature
Professor McAdams will be presenting his paper, “Are Police Interrogations Criminogenic? The Risks of Moral Minimization Tactics.”
11/4/2021
12:15:00 PM to 1:15:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Jamelia Morgan
Assistant Professor of Law, UCI Law
Race, Gender, Disability, Criminal Law and Procedure
Professor Morgan will be presenting her paper, "Disability's Fourth Amendment," Colum. L. Rev (forthcoming 2022).
More information to come.
Intellectual Life Workshop: Monica C. Bell
10/21/2021
12:15:00 PM to 1:15:00 PM
Associate Professor of Law, Yale Law School
Criminal justice, welfare law, housing, race and the law, qualitative research methods, law and sociology
More information to come.
Intellectual Life Workshop: How to Write a Book
10/7/2021
12:15:00 PM to 1:15:00 PM
**This event has moved to Zoom.
Are you interested in writing a book? While legal scholarship overwhelmingly unfolds within the pages of journals, many of us have pursued scholarly ideas within the book context. Please join us for a discussion on the ins and outs of writing books—the challenges, the joys, and the range of options. This panel will feature the experiences and work of five of our colleagues: Swethaa Ballakrishnen, Mehrsa Baradaran, Rick Hasen, David Kaye, and Ann Southworth. Please join us for this discussion.
Intellectual Life Workshop: Ariel Jurow Kleiman
9/23/2021
12:15:00 PM to 1:15:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Ariel Jurow Kleiman
Professor of Law, Loyola Law School
Federal tax law, international tax, tax policy, state and local tax, income inequality, welfare policy
Professor Jurow Kleiman will be presenting her paper, “Impoverishment by Taxation”.
Abstract:
Viewed in the aggregate, the U.S. fiscal system is progressive, reduces inequality, and cuts poverty. The system improves on market outcomes by transferring income from rich to poor. Yet this bird’s eye view rings hollow on the ground, where millions of low- income taxpayers across the United States are made poor or poorer by paying their state and federal taxes. In truth, while the U.S. fiscal system may be broadly equalizing and poverty reducing, for many struggling households, it is impoverishing.
This Article offers a new way to measure taxation of low-income households in the United States, presenting a concept called fiscal impoverishment. Taxpayers are fiscally impoverished when they are made poor or poorer by paying state and federal taxes, after accounting for the offsetting cash or near- cash public benefits they receive. Distinct from the aggregate and anonymous measures by which we typically assess our tax and transfer system, fiscal impoverishment is dynamic and individualized. It highlights individual human dignity and implicates the economic responsibilities of the state vis- à-vis low-income taxpayers.
In addition to introducing the concept, the Article sketches the scope of fiscal impoverishment throughout the United States and recommends adopting impoverishment analysis to guide tax reform at all levels of government. Using stylized households, it explores net tax burdens at various income levels across all fifty states. In combination with U.S. Treasury and Census data, this work reveals that fiscal impoverishment is significant—affecting millions of households—and highly variable—based on a patchwork of federal and state tax and transfer programs. Patterns of impoverishment track familiar safety-net fault lines based on family structure, employment, immigration status, and state of residence. Finally, finding that such impoverishment exists, the Article provides specific reforms and a framework for rethinking taxation of poor households.
Intellectual Life Workshop: Michele Goodwin
8/26/2021
12:15:00 PM to 1:15:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Michele Goodwin
Chancellor’s Professor of Law, UCI School of Law
Bioethics, Constitutional Law, Family Law, Health Law, Reproductive Rights, Torts
Professor Goodwin will be presenting her paper, “Complicit Bias: Law, Duplicity, and Adherence,” (forthcoming, Yale L. Journal (2021- 2022)).
Abstract:
Taking its inspiration from Dr. King, this project offers a new conceptual framework, namely “complicit bias,” to address circumstances wherein people of good will fail to act. This distinct conceptual framework compliments and seeks to expand beyond the recognized theoretical frames: implicit bias and explicit bias. It argues that those important frames fail to capture an important third rail. Unlike implicit bias (being cognitively unaware of prejudiced thoughts and behaviors), individuals who engage in complicit bias are cognitively aware of the specific prejudice, discrimination, and injustice at issue. However, unlike actors engaged in explicit bias, they are not engaged in purposeful acts to discriminate or harm. Rather, individuals who engage in complicit bias occupy a third category. They are individuals who fail to act, correct, and/or acknowledge the discriminatory harms inflicted on vulnerable individuals when aware of the inappropriate, unethical, or illegal conduct. This project seeks to establish and expound upon this theory. It offers historical content to explicate its theoretical foundations and takes up case studies in race, sex, and gender to mark its contours. It concludes with recommendations rooted in law and social science.
Intellectual Life Workshop: Joshua Blank
7/7/2021
12:00:00 PM to 1:00:00 PM
Joshua Blank
Professor of Law, UCI School of Law
Tax Administration and Compliance, Taxation of Business Entities, Taxpayer Privacy and Tax Transparency
Professor Blank will be presenting his paper, “Presidential Tax Transparency" (forthcoming, Yale Law & Policy Review, 2021)
Short description:
Whether the public should have access to the tax returns of the President of the United States, and those who seek the office, is the focus of acute attention and debate. This Article intervenes in the disclosure debate by exploring whether, and to what extent, mandatory public disclosure of tax returns would achieve the policy objective of enabling voters to observe candidates’ and elected officials’ compliance with the tax law. To consider this question, the Article examines information presented in federal income tax returns and reviews the publicly disclosed tax returns of Presidents, Vice Presidents, and major party candidates from President Richard Nixon through President Joseph Biden. The primary claim of this Article is that mandatory public disclosure of an elected official’s or candidate’s federal income tax returns alone would provide the public with only a partial and one-sided view of that individual’s tax compliance. This incomplete image is due to the structure of the federal income tax and tax returns themselves and opportunities for strategic reporting and disclosure by elected officials and candidates. At the same time, the Article argues that public disclosure of tax compliance, if it were possible, could provide valuable information to the electorate, increase public understanding of the tax system, and bolster the sociological legitimacy of the IRS. To enhance the public’s ability to evaluate tax compliance, the Article presents an alternative model of mandatory public disclosure that would include public disclosure not only of tax returns, but also of documents and processes that would highlight tax actions of both candidates and elected officials and the IRS.
Intellectual Life Roundtable Workshop
6/23/2021
12:00:00 PM to 1:00:00 PM
This roundtable workshop will provide a group of UCI Law faculty with an opportunity share their current projects, receive feedback, and generate discussion among colleagues. Zoom information is below.
Dana Lee
Necessity, Legal Interpretation, and Value in the Islamic Legal Tradition: The Case of the Starving Person
In this article, I argue that historical juristic discourses on the hypothetical case of the starving person yield several insights into the dynamics of legal argument, practices of legal pedagogy, and relationship between law and ethics in the Islamic legal tradition. I provide a historically rooted account of the starving person paradigm by tracing the rise of the paradigm as a hallmark hypothetical and examining its change over time and across geographies. I explore the paradigm’s function(s) as a legal heuristic and pedagogy of law in the various contexts in which it was discussed, debated, and taught. Finally, I provide analysis of several core issues of necessity to show how the paradigm served as an important site for the development of legal reasoning and legal theory in the Islamic tradition.
Ji Seon Song
Patient or Prisoner: Hospitals as Carceral Settings
This Article argues that hospitals act as extensions of carceral settings in both pre-trial and post-sentencing phases of the criminal legal process. Hospitals act as temporary and portable police stations, jails and prisons. When police investigate suspects and when they bring in prisoners for medical treatment, police rules trump hospital regulations, rules, and policies regarding patient privacy and dignity. Hospital beds act as jail and prison cells demarcated by police presence, shackles, and other signs of carcerality. The problems of inequality in health and the criminal legal system have resulted in the expansion of the carceral system into another area of stratified social welfare, extending carceral treatment into hospitals and resulting in punitive healthcare.
Jane Stoever
Critically Examining and Countering Reliance on Criminal Convictions in Family Court and Domestic Violence Proceedings
The Black Lives Matter movement and COVID-19’s disproportionate impact on communities of color have heightened the need to expose racial injustice in areas that scholars often overlook. My article critically examines judicial reliance on convictions in family law and domestic violence proceedings, including when statutes explicitly allow for or require Family Court and Domestic Violence Unit judges to consider past criminal convictions and probation and parole status of litigants seeking to secure custody or visitation of their children, form a family through adoption, or receive protection from domestic violence. Given how the criminal legal system disproportionately arrests, charges, and sentences people of color and increasingly criminalizes domestic violence survivors, the convergence of heuristics and bias profoundly impacts litigants’ lives, relationships, families, and communities. While exploring these areas, my article identifies challenges related to judges’ implicit bias and discusses structural hurdles, with criminal and family courts having high-volume dockets that affect adjudication and place pressure on parties to accept plea offers or settlements. I also address survivors' advocates' potential objections to decreasing judicial reliance on criminal convictions in the family law context. The article concludes by offering formal and informal advocacy strategies for overcoming, reforming, and in some cases removing the role of criminal convictions in domestic violence and family court proceedings.
Kaaryn Gustafson
More information to come
Intellectual Life Workshop: Gregory Shaffer
6/9/2021
12:00:00 PM to 1:00:00 PM
Chancellor’s Professor of Law, UCI School of Law
International law and international trade and investment law
Seth Davis
Professor of Law, Berkeley Law
Federal litigation and public administration
Professors Shaffer and Davis will be presenting their paper, “Transnational Fiduciary Law.”
Abstract:
This paper explores this interaction of conceptualizations and discrete problem solving in the transnational development of fiduciary norms. The central problem is one of holding a person entrusted with discretionary authority over the interests of another to their other-regarding mandate. In particular, the paper focuses upon the processes through which conceptualizations of fiduciary relationships and fiduciary norms become transnationally settled and unsettled in practice to address problems within different domains. It asks what “unification” of the field of fiduciary law across national boundaries might look like, if achievable; how unification might (or might not) come about; and what complications and challenges are involved. It deploys a framework to test and assess the ambitions of those calling for a unified theory of fiduciary law that stretches beyond state borders.
Setting the Record Straight: Primary Sources and Evidence on "Comfort Women" Issues
5/20/2021
5:00:00 PM to 7:00:00 PM
Recently, a catalogue of documentary evidence concerning the Japanese imperial military “comfort women” system throughout the Second World War was curated and translated into a readily accessible English format. This is a joint project of Comfort Women Action for Redress & Education (CARE), Korea University American Law Center, and UCLA Center for Korean Studies in order to help people at all levels and across all fields of study understand and discuss the “comfort women” history with a common set of facts.
The aim of this project is to support and substantiate scholarly and political attention to this continuing injustice, and to provide greater clarity and context regarding the experiences of the “comfort women” survivors and victims, and the historical significance of “comfort women” as military policy and practice. Ultimately, we hope that this attention and clarity will further productive engagement with and critical analysis of the “comfort women” historical record, its legal implications, and its morally charged elements. These resources can enhance ongoing discussions in the legal and political communities in the United States, Korea, and the international arena at large.
Welcoming remarks by:
L. Song Richardson, Dean, UCI School of Law
Hyo-Jil Ahn, Dean, Korea University School of Law
Phyllis Kim, Executive Director, Comfort Women Action for Redress & Education (CARE)
Namhee Lee, Director, UCLA Center for Korean Studies
Panelists include:
Alexis Dudden, Professor of History, University of Connecticut
Hye-in Han, Researcher, Asia Peace and History Institute
Paul Hoffman, Co-director, International Human Rights Clinic, UCI School of Law
Pyoung-Keun Kang, Professor, Public International Law, Korea University School of Law
Daniel Diaz, Director, UCLA History-Geography Project
Chungmoo Choi, Associate Professor, East Asian Studies, UCI
Moderated by:
Stephen Lee, Associate Dean for Faculty Research and Development, UCI School of Law
Zoom information will be sent to those who register.
Intellectual Life Workshop: Rebecca Wexler
3/24/2021
12:00:00 PM to 1:00:00 PM
Assistant Professor of Law, Berkeley Law
Data, technology, criminal justice
Professor Wexler will be presenting her paper, “Privacy As Privilege: The Stored Communications Act and Internet Evidence.”
Abstract:
This Article exposes a profound and growing injustice to the criminally accused that major technology companies have propagated through every level of the judiciary under the guise of protecting data privacy. For over a decade, Facebook, Twitter, Google, and Github have leveraged the Stored Communications Act (SCA) — the primary data privacy law for the Internet — to bar criminal defendants from subpoenaing the contents of online communications, even when those communications could exonerate the wrongfully accused. To date, every appellate court to consider the issue has agreed with the companies. This Article argues that all of these decisions are wrong as a matter of binding Supreme Court doctrine and just policy.
Intellectual Life Workshop: Alexis Karteron
3/10/2021
12:00:00 PM to 1:00:00 PM
Associate Professor of Law, Rutgers Law
Civil rights & civil liberties, constitutional law
Professor Karteron will be presenting her paper, “Probation, Parole, and Family Separation.”
Abstract:
The Article explores the policies and practices of probation and parole agencies that separate families. Numerous such agencies condition the freedom of those they supervise on ending all contact with children and spouses. By imposing these extraordinary conditions, probation and parole authorities function as shadow family court judges, making custody decisions and sometimes effectively terminating parental rights without any expertise or the appropriate protections for both parents and children. When not justified to ensure safety, such restrictions constitute grievous infringements on the constitutional rights to parent children and to marry, and operate in contravention to probation and parole agencies’ supposed rehabilitative function.
Intellectual Life Workshop: Manisha Padi
2/24/2021
12:00:00 PM to 1:00:00 PM
Assistant Professor of Law, UC Berkeley Law
Law and economics of consumer financial contracts
Professor Padi will be presenting her paper, “Contractual Inequality”.
Abstract:
Policy debates about economic inequality have overlooked an important driver of inequality – contracts. Ordinary individuals and small businesses struggle to meet their numerous contractual obligations, barely making rent and student loan payments while performing on taxing employment contracts. In contrast, wealthy individuals and corporations regularly cast off onerous contractual obligations or avail themselves of legal tools to renegotiate or modify terms according to their needs. Drawing on a nationwide dataset of residential mortgage contracts, this Article provides quantitative evidence that the same formal contracts give rise to very different outcomes for different types of parties. For instance, more than a third of mortgage lenders never foreclose on properties even when borrowers have stopped making payments. These discretionary benefits accrue to rich borrowers at the expense of the poor, with rich neighborhoods gaining $420 million in wealth per year more than poor neighborhoods from lender leniency. Disparities of this type not only raise equitable concerns but also threaten the economic efficiency of contracts through moral hazard. Since inequality is enabled but not remedied by contract law, this Article argues that inequality generated by contracts must be addressed by regulators overseeing contract performance.
Intellectual Life Workshop: Emily Taylor Poppe
2/17/2021
12:00:00 PM to 1:00:00 PM
Assistant Professor of Law, UCI Law
Civil procedure, the legal profession, law and society, empirical legal studies
Megan Doherty Bea
Assistant Professor of Consumer Science, University of Wisconsin- Madison School of Human Ecology
Consumer finance, financial well-being, socioeconomic and financial inequality
Professor Poppe will be presenting her paper (co-authored with Professor Bea), “Marginalized Legal Categories: Social Inequality, Family Structure, and the Laws of Intestacy.”
Abstract:
Social classifications are increasingly interrelated, far-reaching, and consequential for socioeconomic outcomes. We develop the concept of marginalized legal categories to describe individuals or groups who are disadvantaged by social classification within the law, employing intestacy laws as an illustration. Using the Survey of Consumer Finances, we find that more than 21 percent of Americans are marginalized by intestacy classifications, with marginalization more common among individuals of color and those with less wealth. Yet, many such individuals hold assets and lack access to intestacy-avoidance mechanisms, giving consequence to the application of these laws. We conclude by discussing implications of legal classification for inequality.
Intellectual Life Workshop: Shirin Sinnar
1/27/2021
12:00:00 PM to 1:00:00 PM
Professor of Law, Stanford Law School
Civil Procedure & Litigation, Civil Rights, Constitutional Law, Equal Protection, National Security Law, Separation of Powers
Professor Sinnar will be presenting her paper, “Hate Crimes, Terrorism, and the Framing of White Supremacist Violence.”
Abstract:
Even before the invasion of the Capitol, white supremacist mass shootings in Pittsburgh, El Paso, and elsewhere had provoked a debate over the labeling and treatment of political violence. The media, policymakers, and legal actors generally conceptualized violence by white supremacists according to two predominant socio-legal frames -- "hate crimes" and "terrorism" -- with increasing calls to label and treat that violence as terrorism or domestic terrorism. This Article explains the historical development of the hate crimes and terrorism frames over the last decades of the twentieth century, identifies the starkly divergent approaches they take, and argues that neither frame is consistent with a racial justice approach.
Intellectual Life Workshop: Shauhin Talesh
1/13/2021
12:00:00 PM to 1:00:00 PM
Shauhin Talesh
Professor of Law, UCI Law
Civil procedure, consumer law, insurance, organizations, empirical legal studies, law and society
Anna Kirkland
Arthur F. Thurnau Professor of Women's and Gender Studies, University of Michigan
Law and society, law and politics of health, vaccines, antidiscrimination law, health insurance, gender and sexuality in contemporary U.S. law, politics of rights claiming, sexual harassment in organizations
Angela K. Perone
PhD Student, University of Michigan School of Social Work
Caregiving, aging, LGBT, social movements
Professor Talesh, Professor Kirkland, and Ms. Perone will be presenting their paper, “Health Insurance and Transgender Patient Access to Health Care: Barriers, Work-Arounds, and the Social Construction of Medical Necessity”.
Abstract:
This study explores how insurance companies and health care intermediaries shape the delivery of care to trans patients under existing laws and how trans patients mobilize their health care rights in response to barriers created by insurance companies. To explore the gap between insurance on the books and insurance in action, we draw upon studies of transgender people’s experiences in the healthcare settings, socio-legal studies of legal mobilization, and insurance. Relying on analysis of the coverage and exclusion features of 1496 health insurance contracts and interviews of transgender people who sought care and health care intermediaries, this study reveals how insurance companies, through insurance policy contract language, weaken health care rights for transgender and non-binary people and how transgender patients mobilize their health care rights through a series of work-arounds. We find that health insurance policy language, interpretation, and implementation often create disadvantages and barriers for transgender patients who attempt to access care. We reveal direct and indirect innovations and coping strategies that transgender patients deploy to fight for their rights against health insurance companies. Our study highlights not just the power of insurance policy language but the mechanisms through which regulation is a socially contested and negotiated process.
11/18/2020
12:00:00 PM to 1:00:00 PM
Ming Hsu Chen
Associate Professor of Law, University of Colorado, Boulder School of Law
Immigration Law, Citizenship Law, Administrative Law, Legislation & Regulation, Law & Politics: Race in America, Law & Social Change
Professor Chen will be presenting chapters from her book, Pursuing Citizenship in the Enforcement Era.
Abstract:
Pursuing Citizenship in the Enforcement Era provides readers with the everyday perspectives of immigrants on what it is like to try to integrate into American society during a time when immigration policy is focused on enforcement and exclusion.
The law says that everyone who is not a citizen is an alien. But the social reality is more complicated. Ming Hsu Chen argues that the citizen/alien binary should instead be reframed as a spectrum of citizenship, a concept that emphasizes continuities between the otherwise distinct experiences of membership and belonging for immigrants seeking to become citizens. To understand citizenship from the perspective of noncitizens, this book utilizes interviews with more than one-hundred immigrants of varying legal statuses about their attempts to integrate economically, socially, politically, and legally during a modern era of intense immigration enforcement. Studying the experiences of green card holders, refugees, military service members, temporary workers, international students, and undocumented immigrants uncovers the common plight that underlies their distinctions: limited legal status breeds a sense of citizenship insecurity for all immigrants that inhibits their full integration into society. Bringing together theories of citizenship with empirical data on integration and analysis of contemporary policy, Chen builds a case that formal citizenship status matters more than ever during times of enforcement. She refocuses the immigration debate around constructing pathways to citizenship.
Intellectual Life Workshop: Ruth Mason
10/14/2020
12:00:00 PM to 1:00:00 PM
Ruth Mason
Edwin S. Cohen Distinguished Professor of Law and Taxation, University of Virginia School of Law
Taxation, International Tax, Digital Taxes, EU and state aid law
Professor Mason will be presenting her paper, “The Transformation of International Tax.”
The recession of 2008 precipitated a political crisis that motivated an unprecedented international project to curb corporate tax dodging. This Article argues, contrary to dominant scholarly views, that this effort transformed international tax—changing its participants, agenda and institutions, norms, and even its legal forms. Perhaps most important, efforts to close corporate tax loopholes opened a rift over the resulting revenues that threatens a hundred- year-old tax treaty framework. This Article identifies and critically evaluates these changes from the perspectives of revenue, inclusivity, legitimacy and accountability, innovation, and durability.
More information to come.
Intellectual Life Workshop: Melissa Murray
10/7/2020
12:00:00 PM to 1:00:00 PM
Melissa Murray
Frederick I. and Grace Stokes Professor of Law, NYU Law
Family Law, Constitutional Law, Reproductive Rights and Justice, Law and Sexuality, Criminal Law
Professor Murray will be presenting her paper, “Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade."
Abstract:
Amidst a raft of major Supreme Court decisions, a relatively quiet concurrence has planted the seeds for what may precipitate a major transformation in American constitutional law. Writing for himself in Box v. Planned Parenthood, Justice Clarence Thomas chided the Court for declining to review an Indiana law that prohibited abortions undertaken “solely because of the child’s race, sex, diagnosis of Down’s syndrome, disability, or related characteristics.” Arguing that the challenged law was merely Indiana’s modest attempt to prevent “abortion from becoming a tool of modern-day eugenics,” Thomas proceeded to elaborate a misleading history in which he associated abortion with eugenics, racism, and a broader campaign to improve the human race by limiting Black reproduction.
While many decried his selective and inaccurate invocation of the history of eugenics, Justice Thomas’s ambitions for the concurrence likely went beyond the historical record. Indeed, in drafting the concurrence, Thomas may have been less concerned with history than with the future—and specifically the future of abortion rights and the jurisprudence of race. As this Article explains, the concurrence’s misleading association of abortion and eugenics may well serve two purposes. First, it justifies trait-selection laws, an increasingly popular type of abortion restriction, on the ground that such measures serve the state’s interest in eliminating various forms of discrimination. But more importantly, and less obviously, by associating abortion with eugenic racism, the concurrence lays a foundation for discrediting—and overruling—Roe v. Wade on the alleged ground that the abortion right is rooted in, and tainted by, an effort to selectively target Black reproduction.
Under principles of stare decisis, a past decision, like Roe v. Wade, cannot be overruled simply because a majority of the current Court disagrees with it. Instead, a “special justification” is required. Justice Thomas’s association of abortion with eugenics constructs the case that racial injustice is the “special justification” that warrants overruling Roe. In this regard, the Box concurrence builds on past decisions, like Brown v. Board of Education, as well as more recent cases, like Ramos v. Louisiana, in which the Court overruled past precedents, in part, to correct racial wrongs.
If undertaken, the Box concurrence’s latent strategy will be devastating to abortion rights, but as this Article explains, its deleterious impact goes beyond eviscerating Roe v. Wade. Under the concurrence’s logic, race may serve dual purposes in shaping the Court’s jurisprudence. As an initial matter, race—and the prospect of redressing racial injustice—furnishes the Court with a potent justification for reconsidering settled precedent. But it also provides the Court with an opportunity to articulate new law that affirms and entrenches the Court’s preferred conception of race and racial harm. In this regard, the Box concurrence is not merely an invitation to recast abortion as an issue of racial injustice; it is an invitation to entirely reconceptualize the meaning of race, racial injury, and racism, as well.
Intellectual Life Workshop: E. Tendayi Achiume
9/23/2020
12:00:00 PM to 1:00:00 PM
E. Tendayi Achiume
Professor of Law, UCLA School of Law
Global governance of racism and xenophobia, legal and ethical implications of colonialism for contemporary international migration, international human rights law, international refugee law, international migration, property
More information to come.
Intellectual Life Workshop: Christopher Leslie
9/16/2020
12:00:00 PM to 1:00:00 PM
Christopher Leslie
Chancellor’s Professor of Law, UCI Law
Antitrust law, intellectual property, class action settlements
More information to come.
Intellectual Life Workshop: Michele Goodwin
9/2/2020
12:00:00 PM to 1:00:00 PM
Michele Goodwin
Chancellor’s Professor of Law, UCI Law
Bioethics, Constitutional Law, Family Law, Health Law, Reproductive Rights, Torts
Professor Goodwin will be presenting her paper, “A Different Type of Property: White Women and the Human Property They Kept.”
Professor Mehrsa Baradaran shall be the commentator for this session.
Abstract:
This Essay advances three claims in its contribution to the relatively nascent legal study of white women and their legal and social involvement with slavery as purposeful participants. First, it stresses that the common erasure of white women as slaveholders renders their culpability and complicity in human chattel slavery imperceptible. Simply put, they become blameless and guiltless in an enterprise in which their involvement was far more than proximate and, in many instances, dominant.
Second, scrubbing white women from the archives of antebellum history, serves not only to deny their agency, but also capacities. In other words, removing white women as profiteers and commanders in slavery serves to erase the fact that some were successful, shrewd businesswomen, albeit in a horrid enterprise. Even those who “managed households” rather than large plantations wielded authority. In troubling ways, this erasure served to recast white women as not only disinterested in work and business, which defined Supreme Court jurisprudence on sex for many years, but also it contributes to the stereotype of white women as fragile, disempowered, weak, and vulnerable to lingering effect. In recent decades, diligent efforts by historians correct inaccuracies in this record.
Third, and perhaps most complicatedly, the Essay argues that reading white women as passive or submissive participants in the business of antebellum slavery, ultimately miscasts and misunderstands them in law. That is, they stand apart from the fictive women imagined by courts in Hoyt v. Florida, Bradwell v. Illinois or In re Goodell as they were not wedded or destined to domestic duties.
Intellectual Life Workshop: Joshua Blank
8/19/2020
12:00:00 PM to 1:00:00 PM
Joshua Blank
Professor of Law, UCI Law
Tax Administration and Compliance, Taxation of Business Entities, Taxpayer Privacy and Tax Transparency
Professor Blank will be presenting his paper, “Automated Legal Guidance.”
Professors Victor Fleischer and Tony Reese shall be the commentators for this session.
Abstract:
Through online tools, virtual assistants, and other technology, governments increasingly rely on artificial intelligence to help the public understand and apply the law. The Internal Revenue Service, for example, encourages taxpayers to seek answers regarding various tax credits and deductions through its online “Interactive Tax Assistant.” The U.S. Army directs individuals with questions about enlistment to its virtual guide, “Sgt. Star.” And the U.S. Citizenship and Immigration Services suggests that potential green card holders and citizens speak with its interactive chatbot, “Emma.” Through such automated legal guidance, the government seeks to provide advice to the public at a fraction of the cost of employing human beings to perform these same tasks.
This Article offers one of the first critiques of these new systems of artificial intelligence. It shows that automated legal guidance currently relies upon the concept of “simplexity,” whereby complex law is presented as though it is simple, without actually engaging in simplification of the underlying law. While this approach offers potential gains in terms of efficiency and ease of use, it also causes the government to present the law as simpler than it is, leading to less precise advice and potentially inaccurate legal positions. Using the Interactive Tax Assistant as a case study, the Article shows that the use of simplexity in automated legal guidance is more powerful and pervasive than in static publications because it is personalized, non-qualified, and instantaneous. Further, it argues that understanding the costs as well as the benefits of current forms of automated legal guidance is essential to evaluating even more sophisticated, but also more opaque, automated systems that governments are likely to adopt in the future.
With these considerations in mind, the Article offers three recommendations to policymakers. First, it argues that governments should prevent automated legal guidance from widening the gap between access to legal advice enjoyed by high-income and by low-income individuals. Second, it argues that governments should introduce more robust oversight and review processes for automated legal guidance. Finally, it argues that the government should allow individuals to avoid certain penalties and sanctions when they have taken actions or claimed legal positions in reliance upon automated legal guidance. Unless these steps are taken, we believe that the costs of these automated legal guidance systems may soon come to outweigh their benefits.
Intellectual Life Workshop: Gregory Shaffer
7/29/2020
12:00:00 PM to 1:00:00 PM
Gregory Shaffer
Chancellor’s Professor of Law
International Law and International Trade and Investment Law
Professor Shaffer will be presenting his book chapter (with Bryant Garth), “The Globalization of Legal Education: A Critical Perspective.”
Professors Swethaa Ballakrishnen and Ann Southworth shall be the commentators for this session.
Intellectual Life Workshop: Swethaa Ballakrishnen
7/15/2020
12:00:00 PM to 1:00:00 PM
Swethaa Ballakrishnen
Assistant Professor of Law
Legal Profession, Gender, Critical Feminist and Queer Theory, Global Souths, India
Professor Ballakrishnen will be presenting their paper, “Invisible Institutionalisms: Collective Reflections on the Shadows of Legal Globalization.”
Professors Carrie Menkel-Meadow and Sameer Ashar shall be the commentators for this session.
Abstract:
The study of law and globalisation has developed into a mature field over the past twenty years, with a variety of empirically grounded theoretical understandings of (trans)national legal fields and orderings. Yet, despite the dynamics of legal pluralism and the ripple effects of legal transplants and transformations, there have been pushes and shoves against the globalising ambitions of these theoretical canvasses. The ongoing surge of populism in Europe and the United States is challenging the policies and institutions of what we even think of as the “global” and the prominence taken by China is questioning the position of the United States as an unrivalled hegemon in global political, economic, social and legal diffusion processes. Taking the cue of theoretical and ideological calls to challenge globalisation as a dynamic whose forces of homogenisation – and resistance – are led from, and directed against a diffuse conception of the Global North, this book asks: what can we see when we shift the lens from known and usual understandings of legal globalisation towards lesser understood and apparently invisible processes? And moreover, how can we go beyond a North-South binary to understand legal change? Built around a set of empirical chapters focused on “frontier-zones” of legal globalization in a variety of postcolonial sites - across India, Pakistan and Latin America - it offers an original format to strike this conversation: it suggests a process of de-centering through reflexivity on the individual and structural variables that account for individual trajectories within the field. Framed as a relational dialogue between young and some of the most prominent scholars within the field, from the US core through to postcolonial academic peripheries, it sets out a framework to question the possibilities – and limits – of critiques on legal globalization scripts. Through these collective reflections on the shadows of legal globalization, the book asks how we as scholars build our voice individually, but also how we, collectively, can build a space for critique to question and push against legal globalization scripts.
Intellectual Life Workshop: Rick Hasen
7/1/2020
12:00:00 PM to 1:00:00 PM
Rick Hasen
Chancellor's Professor of Law and Political Science
Election Law, Legislation, Remedies, and Torts
Professor Hasen will be presenting his paper, “Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them.”
Professors Rachel Moran and Mark Rosenbaum shall be the commentators for this session.
Abstract:
The COVID-19 global pandemic, which already has claimed over 100,000 lives in the United States by the end of May 2020, revealed cracks in American economic and social infrastructure. The pandemic also has revealed the inadequacy of the American political infrastructure, in particular, the lack of systematic and uniform protection of voting rights in the United States.
The pandemic has illuminated three pathologies of American voting rights that existed before the pandemic and are sure to outlast it. First, the United States election system features deep fragmentation of authority over elections. Second, protection of voting rights in the United States is marked by polarized and judicialized decisionmaking. Third, constitutional protections for voting rights remain weak.
Despite these three pathologies and the Supreme Court’s recent decision in RNC v. DNC concerning Wisconsin ballot receipt deadlines which sided against expanded voting rights, there is room for some hope that at least some courts will provide measure of protection for voting rights during the pandemic. In some of the early COVID-19-related election litigation, courts are putting a thumb on the scale favoring voting rights and enfranchisement in both constitutional and statutory cases. Judges have recognized that the balancing required by the Anderson-Burdick test looks radically different when voters cannot easily register and vote in person, and when candidates cannot collect signatures to get on the ballot. In the context of statutory interpretation, some courts seem to be applying without explicit articulation “the Democracy Canon,” an old canon of judicial interpretation counseling courts to interpret ambiguous election statutes with a thumb on the scale favoring voting rights. But the picture is mixed, and a number of courts are not adequately accommodating voting rights during the pandemic.
More significantly, court intervention can only go so far, and long term vigorous judicial protection of voting rights is neither likely nor sufficient to cure American voting rights pathologies. Progress will require more radical change, such as a constitutional amendment protecting the right to vote, requiring national nonpartisan administration of federal elections, and setting certain minimal voter-protective standards for the conduct of state and local elections. Movement toward constitutional amendment is a generational project aimed at entrenching strong voting rights protections against political backlash.
Intellectual Life Workshop: Ji Li
6/17/2020
12:00:00 PM to 1:00:00 PM
Ji Li
John & Marilyn Long Professor of US-China Business and Law
Chinese Law and Politics, International Business Transactions, Comparative Law, Contracts, Empirical Legal Studies
Professor Li will be presenting his paper, “In Pursuit of Fairness: How Emerging Market Multinationals React to Host-State Bias.”
Professor Benjamin Van Rooij shall be the commentator for this session.
Abstract:
With the disintegration of the international economic order, multinationals confront increasingly adverse regulatory environments in developed host countries. How do Chinese and other emerging market investors react? In other words, how do they choose among a wide variety of remedial institutions? Do they prefer formal venues (e.g., investment arbitration and litigation in host-country courts) to informal ones (e.g., lobbying and home-state diplomatic assistance)? Also, do state-owned multinationals, figuring prominently in outbound investment from emerging market, differ in their preferences for the various institutional resources? The existing literature on the subject, highly fragmented and West-centric, offers few clues. To narrow the gaps, this article applies an integrated institutionalist framework and empirically analyzes the contemplated reactions of Chinese multinationals to unfair agency treatment in the US. The findings make multiple theoretical and policy contributions.
Intellectual Life: What is the future of DACA?
5/20/2020
12:00:00 PM to 1:00:00 PM
The Deferred Action for Childhood Arrivals (DACA) program has been the most significant immigration benefits program in a generation. The Trump administration has tried to end this program leaving its future uncertain and its legacy still to be written. Hanging over all of this is the question of how the Supreme Court will rule on legality of the rescission. Please join us for a discussion on the various implications of the potential rescission. Panelists will include Professor Monica Almadani (UCI School of Law), Angela Chen (UCI Dream Center), Katharine Gin (Immigrants Rising), and Iliana Perez (Immigrants Rising). This panel will be moderated by Professor Stephen Lee (UCI School of Law).
More information to come.
Intellectual Life Workshop: Teaching & Learning Workshop
4/15/2020
12:00:00 PM to 1:00:00 PM
Online
Intellectual Life Workshop: Fred Smith Jr.
3/11/2020
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Fred Smith Jr., Associate Professor of Law, Emory University School of Law
Constitutional law, constitutional litigation, federal courts
Lunch will be provided.
Intellectual Life Workshop Calendar
Intellectual Life Workshop: Summer Kim
2/19/2020
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Summer Kim, Assistant Professor of Law, UCI School of Law
Corporate law, corporate finance, financial regulation, contracts
Lunch will be provided.
Intellectual Life Workshop Calendar
Intellectual Life Workshop | Profs. Solomon & Weinstein Film Discussion: Philadelphia
2/14/2020
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
As part of a broader effort to expand our intellectual life offerings and create a more inclusive intellectual community—particularly for staff, who do so much to keep our school running and thriving—Professors Bob Solomon and Henry Weinstein will be leading a discussion on the Oscar-winning film, Philadelphia, on Friday, February 14th, in Law 3500.
For several years, Bob and Henry have taught a class on “Law and Popular Culture.” This has been an informative, fun, and successful class for our students, and is consistent with their broader interests in making law accessible and interesting. As in the class, their discussion of Philadelphia will address: Proving Discrimination and Sexual Harassment – Propaganda versus Facts: Controlling the Agenda.
A description of the film is below. Lunch will be provided, but due to time constraints, the film should be watched in advance.
Philadelphia (1993) might seem late to be a ground-breaking view of HIV and homophobia, not to mention a rare portrayal of an African- American lawyer. The film was based on real cases, most notably Geoffrey Bowers, who was fired by Baker & McKenzie and brought one of the first AIDS discrimination cases. Andrew Beckett (Tom Hanks), who is showing AIDS-related lesions, is fired from his prestigious law firm job, where acclaimed actor Jason Robards plays the senior partner. Joe Miller (Denzel Washington) overcomes his own homophobia and represents Beckett. The incredible cast also includes Joanne Woodward, Antonio Banderas, Mary Steenburgen, Anna Deveare Smith, and Julius Erving.
Intellectual Life Workshop: Judith Resnik
2/12/2020
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Judith Resnik, Arthur Liman Professor of Law, Yale Law School
Federalism, procedure, courts, prisons, equality, and citizenship
Professor Resnik will be presenting her paper, “Collective Preclusion and Inaccessible Arbitration: Data, Non-Disclosure, and Public Knowledge.”
Abstract:
When courts enforce mandates to arbitrate, jurists describe themselves as respecting individuals’ autonomy to enter into contracts and as routing claimants to a process that is more user-friendly process than adjudication. But, as the epigraph with which we begin reflects, providers of products and services and employers both mandate terms of arbitration and now not only ban joint or collective actions in either arbitration or courts but also impose confidentiality clauses. These provisions typically instruct individuals not to disclose the content of claims, the use of arbitration, or the outcomes.
In this article, we explores courts’ responses to such silencing clauses as well as other routes to information about the use and impact of arbitration mandates. Some jurists have held nondisclosure obligations unenforceable, but many have condoned their use despite the repeat player advantages that accrue to the clauses’ drafters, who have access to information that one-shot participants do not. A picture of the use by individuals of arbitration comes from data required by a few states, which oblige providers of arbitration to provide web-based information. From mining thousands of entries, we learned that of the millions of people using services and products, virtually none number file individual arbitration claims. The available data also reflect that law firms and other aggregators have begun a market in de facto collective actions by bundling similar claims against individual providers. These episodic interactions do not provide systematic access for consumers who have been harmed but lack either knowledge of their injuries or connections to aggregators. The privatization of process coupled with nondisclosure mandates prevents others, similarly situated, from learning about the potential to obtain redress and from sharing lawyers with others. In short, after decades of conflicts often termed “class action wars,” we are now in the “information wars,” replete with energetic efforts to mandate nondisclosure that, we argue, law should rebuff.
Lunch will be provided.
Intellectual Life Workshop: Irene Oritseweyinmi Joe
2/5/2020
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Irene Oritseweyinmi Joe, Acting Professor of Law, UC Davis School of Law
Criminal law, criminal procedure, professional responsibility, voir dire, criminal trials: theory and practice
Professor Joe will be presenting her paper, "Who the Public Defender Should Be."
Abstract:
The public defender may be critical to protecting individual rights in the U.S. criminal process, but state governments take remarkably different approaches to structuring the distribution of services. Some state governments contextualize public defender services as a function of the executive branch of state governance. Others administer the services through the judicial branch. The remaining state governments separate the provision of services from the three traditional branches of government by rendering it independent of statewide management and delegating its administration to local or county governance.
But which branch of government properly oversees the public defender? Should the public defender exist under the same branch of government that oversees the prosecutor and the police – two entities that the public defender seeks to hold accountable in the criminal process? Should the provision of services be housed under the judicial branch which is ordinarily tasked with being a neutral arbiter in criminal proceedings? Perhaps a public defender who is independent of statewide governance is ideal even if that might render it a lesser player among the many government institutions battling for limited state resources.
This article seeks to provide an answer to this important question about state assignment by engaging in an original confrontation of each state’s architectural choices for the public defender. A state’s chosen design explicitly captures its definition of the public defender’s role in the criminal process. The chosen arrangement influences the type and quality of public defender funding and establishes the supervisory structure for the provision of services. Both of these characteristics are critical to the meaning and efficacy of the public defender institution.
This article’s primary contribution is to enrich our current understanding of how each state manages the public defender function and how that influences its funding and adherence to constitutional and ethical guidelines. It goes further by concluding that the public defender should be an important executive function in this modern era of mass criminalization and articulating modifications that would improve such a state design. This paper shows that the public defender’s ability to effectively function is fragile under existing management structures. The interventions prescribed in this paper, however, would help secure its essential role as the state’s protector of individual rights against the state’s own exercise of power.
Lunch will be provided.
Intellectual Life Workshop: Teaching & Learning Workshop
1/29/2020
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
In this workshop hosted by the Teaching and Learning Committee, Dr. Pheather Harris will present research and lead a discussion on inclusive academic spaces. She will particularly explore how to incorporate the social and cultural location of students from underrepresented populations into our everyday pedagogical practice. The goal is to reduce the potential of stereotype threat, microaggressions, marginalization, or other undesirable environmental influences on the experience of students in postsecondary education.
Lunch will be provided.
Intellectual Life Workshop: Christopher Leslie
1/22/2020
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Christopher Leslie, Chancellor's Professor of Law, UCI Law
Antitrust law, intellectual property, class action settlements
Professor Leslie will be presenting his paper, "Proving Price Fixing".
Abstract:
Executives who engage in price-fixing conspiracies conceal their activities by employing code names, holding meetings in secret, creating fake trade associations, falsifying travel documents and expense reports, and destroying incriminating evidence. Despite the hurdles these concealment devices present to antitrust plaintiffs trying to prove a price-fixing conspiracy, courts have made it unreasonably difficult for these plaintiffs to survive motions to dismiss and motions for summary judgment. This project explores how courts have foolheartedly created a body of antitrust law that essentially rewards the concealment activities of price fixers.
Lunch will be provided.
Intellectual Life Workshop Calendar
Intellectual Life Book Talk | Alejandro Camacho, Reorganizing Government: A Functional and Dimensional Framework
11/20/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
A pioneering model for constructing and assessing government authority and achieving policy goals more e�ectively
Regulation is frequently less successful than it could be, largely because the allocation of authority to regulatory institutions, and the relationships between them, are misunderstood. Reorganizing Government explains how past approaches have failed to appreciate the full diversity of alternative approaches to organizing governmental authority. Camacho and Glicksman demonstrate how differentiating authority based on governmental function and among three dimensions—centralization, overlap, and coordination—can lead to more effective regulation and governance. The authors illustrate these often neglected aspects of inter-jurisdictional relations through in-depth explorations of several diverse case studies, including securities and banking regulation, food safety, pollution control, resource conservation, and terrorism prevention. (NYU Press, 2019)
Alejandro Camacho is a Professor of Law and the Faculty Director of the Center for Land, Environment, and Natural Resources at the UCI School of Law. His writing explores the role of public participation and scientific expertise in regulation, the allocation of regulatory authority, and how both the design and goals of legal institutions must and can be reshaped to more e�ectively account for emerging technologies and the dynamic character of natural and human systems.
Intellectual Life: JD/PhD Concurrent Degree Student-Faculty Mixer
11/13/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
This lunch session provides an opportunity for faculty to meet our JD/PhD concurrent degree students and to hear about their research agendas. We hope this will be an interactive event and an opportunity for both students and faculty to get to know one another better and continue independent conversations moving forward. Many of these students hope to eventually pursue academic positions or do policy work on the national and international stage.
Intellectual Life Workshop: Camille Gear Rich
11/6/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Camille Gear Rich
Professor of Law and Sociology, USC Gould School of Law
Constitutional law, feminist legal theory, family law, children and the law, the First Amendment
Professor Rich will be presenting her paper (with Tristin K. Green), “Love Match or Compatible in Theory? Charting The Relationship Between Critical Race Theory and Queer Theory in Legal Scholarship”.
This Essay explores productive marriages between Critical Race Theory and Queer Theory in legal scholars’ work and also challenges scholars to further mine the fields’ similarities and differences for deeper insight. As the discussion shows, the coupling and combination of these two theoretical approaches can be challenging, but it is also clear that these unions promise to play a critical role in advancing our understanding of social inequality.
Lunch will be provided.
Intellectual Life Workshop: Dorothy Lund
10/30/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Dorothy Lund, Assistant Professor of Law, USC Gould School of Law
Corporate law, corporate governance, securities regulation, contracts, mergers and acquisitions
Toward a Mission Statement for Mutual Funds in Shareholder Litigation
Abstract:
This paper analyzes the conduct of mutual funds in shareholder litigation. We begin by reviewing the basic forms of shareholder litigation and the benefits such claims might offer mutual fund investors. We then investigate whether and how the ten largest mutual funds participate in shareholder litigation through an in-depth docket review. We find that although shareholder suits offer potential benefits, the largest mutual funds have essentially forfeited their use of litigation. This finding is particularly striking given that index funds and other long-term oriented mutual funds generally cannot sell their shares when they are dissatisfied with company performance, leaving them with only two levers in corporate governance—voting and suing. Mutual funds vote, but they do not sue.
We analyze potential explanations for the failure of mutual funds to litigate on behalf of their investors. Collective action problems and conflicts of interest raise significant obstacles to mutual fund participation in shareholder litigation. Yet, we argue, there are situations in which shareholder litigation could create value for mutual fund investors. We therefore turn to the normative question: how should mutual funds litigate on behalf of their investors? Answering this question allows us to articulate a mission statement for mutual funds in shareholder litigation.
Our mission statement is grounded on the perspective of the broadly diversified “market investor.” The repeat-play incentives and broad diversification of many mutual funds, and index funds in particular, suggests that they could create value by focusing principally on deterrence objectives. Mutual funds should bring shareholder suits against portfolio companies when doing so would meaningfully enhance deterrence. They should also scrutinize the litigation brought by other shareholders, objecting to outcomes that fail to promote meaningful deterrence. At the same time, mutual funds should focus on compensatory goals in litigation against non-portfolio defendants because extra-portfolio claims do not raise circularity concerns, i.e., the risk that litigation would simply transfer money from one pocket to the other. In addition, mutual funds should consider whether litigation can be used to implement corporate governance reforms. Finally, in all cases, mutual funds should closely monitor litigation agency costs. We close by suggesting ways in which the incentives of mutual funds might be restructured to bring these changes about.
Lunch will be provided.
Intellectual Life Workshop: Maxine Burkett
10/24/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Maxine Burkett, Professor of Law, University of Hawai‘i at Mānoa William S. Richardson School of Law
Climate change law and policy, torts, ocean and coastal law, and international law
The Governed and Ungoverned: Climate Change and the Law of Sea Level Rise
Abstract:
In this article, Burkett reviews the state of governance of sea level rise-induced migration. In the literature, human mobility in the context of climate change is comprised of three movement types—migration, displacement, and relocation—with varying degrees of formal governance. Burkett introduces the diversity of governance regimes along the displacement-migration- and relocation spectrum and highlights the challenges that the ’new abnormal’ of climate change presents. Displacement generally describes situations in which people are forced to leave their homes as a result of sudden shocks such as the flooding caused by storm surge now atop sea level rise. Depending on the jurisdiction, those displaced may avail themselves of the legal infrastructure that manages post-disaster recovery or temporary visas offered by foreign governments. On the other end of the spectrum, planned relocation describes a coordinated process to resettle a community in another permanent settlement. This kind of relocation, like managed retreat, has established and emerging governance paradigms that have been utilized in very limited instances in various countries and jurisdiction. Migration describes ostensibly voluntary movement resulting from extensive and generally slow-onset risk. While there is a patchwork of governance regimes for each of the climate- induced mobility scenarios, migration typically involves individual and perhaps household movement that is done independent of any formal planning and governing framework, and is contingent upon the general parameters governing mobility within and between countries. None of the existing regime are especially equipped to manage the novel circumstances sea level rise presents.
Lunch will be provided.
Intellectual Life Workshop: Laurel Fletcher
10/18/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Laurel Fletcher, Clinical Professor of Law, UC Berkeley School of Law
Human rights, humanitarian law, international criminal justice, and transitional justice
Let’s Talk about the Boteros: Law, Memory, and the Torture Memos at Berkeley Law
Abstract:
What parts of their uncomfortable associations should universities remember, and how? Around the world, institutions of higher learning are confronting what to do with symbols of their ties to slavery, colonialism, racism and other projects antithetical to their values. Berkeley Law is about to revisit an ongoing question about its link with the War on Terror that has brought recurring protests since 2004: how the school should address its relationship to the “Torture Memos” of the Bush Administration and one of their principal authors and Berkeley Law professor, John Yoo. The impetus for this discussion is the decision by the new Dean of the law school to consider removing the paintings by Fernando Botero of prisoner abuse by US soldiers at Abu Ghraib. The art is a rebuke to the decision of the United States to rewrite the foundational norms of the rule of law in the pursuit of national security after 9/11. Their potential removal raises questions of memory heuristics: why the paintings are there at all, what they communicate about the past, and whether this past is worthy of commemoration. This article examines the paintings as works of public memory and offers a framework within which to analyze what the Boteros have come to mean to the law school community. Understanding the Boteros as socially constructed and imbued with multiple meanings, enables us to see their representational work in greater complexity and invests the deliberation about their future as a site for shaping institutional identity and values. By grounding discussion of how the law school should reconcile with this divisive past in memory theory, the article contributes insights into broader debates about how universities should reckon with their shameful or distressing histories.
Lunch will be provided.
Intellectual Life Workshop: Jonathan Glater
10/3/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Jonathan Glater, Professor of Law, UCI School of Law
Higher education law, criminal law, corporate law, white collar crime and securities fraud
Sovereign Shields: Student Loan Servicing and the End of State Law
Abstract:
In litigation against private companies that service student loans on behalf of the federal government, borrowers have accused servicers of violating state consumer protection laws. The battle over whether these state laws can be used to enforce accountability likely turns on whether the servicers can shield themselves from liability by asserting that they are protected by the doctrines that protect federal government entitles. Potentially at stake is nothing less than the ability of states to protect their residents from misconduct by the myriad businesses hired by the federal government to contract on its behalf – as well as, of course, the ability of student borrowers to proceed with claims that servicers’ misconduct has had ruinous effects on their financial lives.
Servicers seek to benefit from any or all of a handful of powerful doctrines. One is federal preemption of state law, arguing that the Higher Education Act precludes state legislation and regulation of servicer conduct. Another is the distinct right of the federal government to dictate the limits of regulation of its conduct, and perhaps that of its hired help, by the states. And yet another is the ability of the federal government, under the doctrine of sovereign immunity, to define where and when it can be sued.
This Article explores whether and/or how far that immunity extends to cover non-governmental entities. This is the question of “derivative supremacy.” Derivative supremacy refers to these three doctrines –preemption, derivative sovereign immunity, and intergovernmental immunity –that nongovernmental actors now seek to exploit to take advantage of the protections enjoyed by the federal government, to avoid potential liability. The Article untangles the doctrine, outlines the risks if servicers are successful in arguing for derivative supremacy, and offers potential solutions to prevent a radical shift in the balance of power among the federal government, the private corporate actors it hires, states, and consumers.
Lunch will be provided.
Intellectual Life Workshop Calendar
Intellectual Life Workshop: Richard Re
9/18/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Richard Re, Professor of Law, UCLA School of Law
criminal procedure, federal courts, constitutional law
Predictive Fairness in Criminal Justice
Abstract:
This paper contributes to debates on predictive and algorithmic fairness in the criminal justice system by drawing on contractualism, an ethical theory that demands principles of conduct that no individual can reasonably reject. In general, contractualism privileges the objections of the most vulnerable individual above aggregate social welfare. Contractualism helps to explain why predictive methods pose fairness challenges when they burden people on grounds that are insensitive to their choices: in general, an individual has less ability to raise reasonable objections when he could have reduced his risk of suffering burdens by choosing appropriately. Thus, an individual has good reason to reject principles that would burden him based on the actions of others, particularly when doing so would compound background social inequalities. Examples include not just racial profiling but also predictive policing tools that rest on statistical patterns observable at a population level, without considering individual behavior. Still, contractualism suggests that criminal-justice prediction can be fair. For one thing, an algorithm’s lack of “explainability” is less important to fairness than sometimes suggested, because people can avoid burdens by choosing to abide by the law, even if they don’t understand the nuts-and-bolts of how algorithms work. Further, sophisticated algorithmic tools are at least somewhat sensitive to individual choice and so can be fair—provided certain conditions are met. Finally, contractualism points toward certain measures of algorithmic discrimination, such as false positive rates, over others. Overall, contractualism offers a moderate approach, intermediate between the optimism and pessimism that marks many debates on predictive criminal justice. And contractualism’s insights can be helpful even for those who subscribe to different first-principles views of fairness and criminal justice.
Co-sponsored by the Center for Legal Philosophy.
Lunch will be provided.
Intellectual Life Workshop: Robert Bartlett
9/4/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Robert Bartlett, Professor of Law, UC Berkeley School of Law
Securities regulation, corporate finance, contracts, venture capital finance
Professor Bartlett will be presenting his paper, “Consumer-Lending Discrimination in the FinTech Era”.
Abstract:
Discrimination in lending can occur either in face-to-face decisions or in algorithmic scoring. We provide a workable interpretation of the courts’ legitimate-business-necessity defense of statistical discrimination. We then estimate the extent of racial/ethnic discrimination in the largest consumer-lending market using an identification afforded by the pricing of mortgage credit risk by Fannie Mae and Freddie Mac. We find that lenders charge Latinx/African-American borrowers 7.9 and 3.6 basis points more for purchase and refinance mortgages respectively, costing them $765M in aggregate per year in extra interest. FinTech algorithms also discriminate, but 40% less than face-to-face lenders. These results are consistent with both FinTech and non-FinTech lenders extracting monopoly rents in weaker competitive environments or profiling borrowers on low-shopping behavior. Such strategic pricing is not illegal per se, but under the law, it cannot result in discrimination. The lower levels of price discrimination by algorithms suggests that removing face-to-face interactions can reduce discrimination. Further silver linings emerge in the FinTech era: (1) Discrimination is declining; algorithmic lending may have increased competition or encouraged more shopping with the ease of platform applications. (2) We find that 0.74-1.3 million minority applications were rejected between 2009 and 2015 due to discrimination; however, FinTechs do not discriminate in loan approval.
Lunch will be provided.
Intellectual Life Workshop: Michele Goodwin
8/28/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Michele Goodwin, Chancellor's Professor of Law, UCI School of Law
Bioethics, Constitutional Law, Family Law, Health Law, Reproductive Rights, Torts
Professor Goodwin will be presenting her paper (with Erwin Chemerinsky), “The Transgender Military Ban: Preservation of Discrimination Through Transformation”.
Abstract:
In this Article, we scrutinize the Trump administration’s ban on transgender individuals serving in the military and critique the Supreme Court’s unusual move in intervening in the matter by lifting the injunctions in place by lower courts. The Supreme Court’s actions signal a worrying time ahead. As we articulate in this Article, the Supreme Court’s decision to lift the injunctions now allows unjustified discrimination against transgender individuals and likely signals a significant shift in the Supreme Court on LGBTQ issues. For many LGBTQ advocates, the Supreme Court’s decision was a stunning defeat, particularly in light of a line of Court decisions advancing same sex equality. Yet, the constitutional gains related to sex and LGBTQ equality, particularly as evidenced through Supreme Court victories, may obscure the retrenchment of discrimination yet to come with a divided Court that splits along ideological lines. We predict that rather than building upon Justice Anthony Kennedy’s legacy in articulating and advancing rights for LGBTQ persons, the Court’s decision may signal a new era marked by the preservation of discrimination.
Our thesis is that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any justification. Unfortunately, the Supreme Court’s intervention to lift the preliminary injunctions bodes poorly for how the Court will deal with this issue and other LGBTQ issues to come. In Part I, the Article situates the transgender military ban as continuing the history of military discrimination against LGBTQ individuals. In Part II, we argue that the transgender military ban is unjustified by any legitimate purpose as compellingly articulated by the district court and as demonstrated by empirical evidence.
In Part III, the Article turns to the Supreme Court and its abuse of the discretion of review. We articulate why the Court’s unusual lifting of the district courts’ injunctions was unjustified, particularly as the Court acted before Court of Appeals decisions. Finally, in Part IV, we forecast the Court’s lifting the injunctions as likely reflecting a major shift on the Court as to LGBTQ issues. Without Justice Kennedy, we warn, the progress made toward LGBTQ equality may be vulnerable.
Lunch will be provided.
Intellectual Life Workshop: Serena Mayeri
8/21/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Serena Mayeri, Professor of Law and History, University of Pennsylvania Law School
American legal history, employment discrimination law, family law
Double Standards: Sex, Sexuality, and Marital Status in the Long 1970s
Abstract:
The paper is a draft chapter drawn from Professor Mayeri's book manuscript in progress, which is tentatively titled The Status of Marriage: Marital Supremacy Challenged and Remade, 1960-2000. The chapter chronicles how plaintiffs and their lawyers used new constitutional and statutory weapons to challenge restrictions on public employment and military service for schoolteachers (and servicewomen) who became pregnant outside of marriage; engaged in nonmarital cohabitation; or were known to be gay or lesbian. Focusing on occupations in which moral character and community standards of morality persisted as qualifications for employment, the chapter traces how arguments based on sexual privacy, equal protection, sex and marital status discrimination—among others—fared in and out of court from the late 1960s through the early 1980s.
Lunch will be provided.
Intellectual Life Workshop: Omri Marian
7/24/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Omri Marian, Professor of Law, UCI Law
International taxation, comparative taxation, taxation of financial instruments
2018-2019 Intellectual Life Workshop Calendar
Lunch will be provided.
Intellectual Life Workshop: Pedagogy
7/10/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Discussion led by Christina Chong and Annie Lai.
2018-2019 Intellectual Life Workshop Calendar
Lunch will be provided.
Intellectual Life Workshop: L. Song Richardson
6/19/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
L. Song Richardson, Dean and Chancellor's Professor of Law, UCI Law
Criminal procedure, criminal law, law and social science
Dean L. Song Richardson will be presenting her paper, “The Fallacy of the (Racial) Solidarity Presumption”.
Abstract:
Mass incarceration in America is a story of race discrimination. On the one hand, this means that our knowledge about discrimination helps explain why our criminal system looks the way it does. On the other hand, mass incarceration can also teach us something profound about the nature of discrimination itself.
In Locking Up Our Own, James Forman does a masterful job excavating, analyzing and exposing how African Americans are not only the victims of mass incarceration, but also its agents. In doing so, he is careful to point out that this does not render mass incarceration racism-neutral: while Black leaders often resorted to “tough on crime” measures that ultimately ended up hurting the very communities they were attempting to protect, they did so because racism constrained their options. Despite this insight, at least one commentator is already advancing the proposition that because African Americans played a significant role in mass incarceration, race has played less of a role than liberals and progressives like to admit. I will refer to this supposition as the “solidarity presumption.” The argument is that if members of stigmatized groups, say Black Americans or women, act in ways that disadvantage or disfavor demographically similar others, then the issue cannot be rooted in racism or sexism., The argument rests on the widely accepted yet false psychological assumption that members of disadvantaged groups will not act in discriminatory ways against members of their own disadvantaged groups.
In this Commentary, I will sketch out the solidarity presumption, explain why it is a fallacy, and discuss its implications for the fight to achieve civil rights. I will focus on the impacts of the solidarity presumption on racial equity, although its influence is more far-reaching. A fuller treatment of the issues raised in this Commentary will be explored in future work.
Lunch will be provided.
Intellectual Life Workshop: Alexandra Natapoff
6/5/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Alexandra Natapoff, Professor of Law, UCI Law
Criminal law and procedure, misdemeanors, informants, public defense, law and inequality
Professor Natapoff will be presenting her paper, “A Theory of Criminal Municipal Courts”.
Abstract:
Municipal courts are the lowest and least scrutinized echelon of the U.S. criminal system. They are largely ignored by judicial theorists and by municipal governance scholarship, and data on them is likewise scarce: no national authority collects data on their operations or dockets. This Article aims to cure that invisibility, offering the first comprehensive description and theorization of the enormous municipal court phenomenon. There are over 8,000 such courts nationwide, and they collectively issue over 2 million convictions every year. Created, run, and controlled by local municipalities, these courts—sometimes referred to as “summary” or “justice” or “police” courts--are central to cities’ ability to police, maintain public safety, and raise revenue. They are best understood as hybrid institutions: simultaneously courts, administrative adjudicators, and arms of municipal governance. As such, they create deep tensions with judicial norms of independence, separation of powers principles, due process, and other traditional indicia of criminal court legitimacy. As a way of unearthing those tensions, this Article deploys the scholarships of various fields--on the judicial function, on administrative adjudication, and on municipal government--to explore the special and often troubling institutional character of this lowest tier of American criminal justice. It also identifies how the Supreme Court has affirmatively rolled back basic criminal procedure requirements as a way of accommodating municipal courts’ localism, the petty nature of the crimes they adjudicate, and the lack of resources associated with their status as local entities. The Article concludes that municipal courts reveal a broader dynamic at the bottom of the penal pyramid, in which low-status cases, institutions, and populations exert a gravitational force on law itself.
Lunch will be provided.
Intellectual Life Workshop: Trina Jones
4/17/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Trina Jones, Jerome M. Culp Professor of Law at Duke Law
Lunch will be provided.
Intellectual Life Workshop: Rashmi Dyal-Chand
4/16/2019
6:00:00 PM to 7:30:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Professor Dyal- Chand will be presenting her book, Collaborative Capitalism in American Cities: Reforming Urban Market Regulations (Cambridge University Press, 2018).
Publisher’s Description:
In many American cities, the urban cores still suffer. Poverty and unemployment remain endemic, despite policy initiatives aimed at systemic solutions. Rashmi Dyal-Chand's research has focused on how businesses in some urban cores are succeeding despite the challenges. Using three examples of urban collaborative capitalism, this book extrapolates a set of lessons about sharing. It argues that sharing can fuel business development and growth. Sharing among businesses can be critical for their economic survival. Sharing can also produce a particularly stable form of economic growth by giving economic stability to employees. As the examples in this book show, sharing can allow American businesses to remain competitive while returning more wealth to their workers, and this more collaborative approach can help solve the problems of urban underdevelopment and poverty.
Light refreshments will be provided.
Intellectual Life Workshop: Committee Presentation
4/10/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Rick Hasen, Chancellor's Professor of Law and Political Science, and Dan Burk, Chancellor’s Professor of Law at UCI School of Law will give a presentation on applying for fellowships.
Lunch will be provided.
Intellectual Life Workshop: Yair Listokin
4/9/2019
12:20:00 PM to 1:10:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Yair Listokin, Shibley Family Fund Professor of Law at Yale Law School, will present a talk on his forthcoming book, Law and Macroeconomics: Legal Remedies to Recessions.
Publisher’s description:
A distinguished Yale economist and legal scholar’s argument that law, of all things, has the potential to rescue us from the next economic crisis.
After the economic crisis of 2008, private-sector spending took nearly a decade to recover. Yair Listokin thinks we can respond more quickly to the next meltdown by reviving and refashioning a policy approach whose proven success is too rarely acknowledged. Harking back to New Deal regulatory agencies, Listokin proposes that we take seriously law’s ability to function as a macroeconomic tool, capable of stimulating demand when needed and relieving demand when it threatens to overheat economies.
Listokin makes his case by looking at both positive and cautionary examples, going back to the New Deal and including the Keystone Pipeline, the constitutionally fraught bond-buying program unveiled by the European Central Bank at the nadir of the Eurozone crisis, the ongoing Greek crisis, and the experience of U.S. price controls in the 1970s. History has taught us that law is an unwieldy instrument of macroeconomic policy, but Listokin argues that under certain conditions it offers a vital alternative to the monetary and fiscal policy tools that stretch the legitimacy of technocratic central banks near their breaking point while leaving the rest of us waiting and wallowing.
Lunch will be provided.
Intellectual Life Workshop: Rick Hasen
4/3/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Rick Hasen, Chancellor's Professor of Law and Political Science at UCI School of Law, will discuss his book in progress, "Stolen", How Voter Suppression, Incompetence, Dirty Tricks, and Trumpism Threaten American Elections [Tentative Title] (Forthcoming: Yale University Press, 2020).
Lunch will be provided.
Intellectual Life Workshop: Robin West
3/27/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Robin West, Frederick J. Haas Professor of Law and Philosophy at Georgetown Law
Lunch will be provided.
Intellectual Life Workshop: Shayak Sarkar
3/25/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Shayak Sarkar, Acting Professor of Law at UC Davis School of Law
Lunch will be provided.
Intellectual Life Workshop: Diversity Committee Presentation
3/20/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Annie Lai, Clinical Professor of Law, Trilby Robinson- Dorn, Associate Dean for Lawyering Skills, and Jonathan Glater, Professor of Law, UCI School of Law will give a presentation on Inclusive Pedagogy.
Lunch will be provided.
Intellectual Life Workshop: Adam Bonica
3/13/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Adam Bonica, Associate Professor, Department of Political Science at Stanford University
Lunch will be provided.
Intellectual Life Workshop: Joy Milligan
2/27/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Joy Milligan, Professor of Law at UC Berkeley School of Law
Lunch will be provided.
Intellectual Life Workshop: Judith Daar
2/6/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Judith Daar, Visiting Professor of Law, UCI School of Law, will discuss her recent book, The New Eugenics: Selective Breeding in an Era of Reproductive Technologies (Yale University Press 2017).
Publisher's description:
A provocative examination of how unequal access to reproductive technology replays the sins of the eugenics movement
Eugenics, the effort to improve the human species by inhibiting reproduction of “inferior” genetic strains, ultimately came to be regarded as the great shame of the Progressive movement. Judith Daar, a prominent expert on the intersection of law and medicine, argues that current attitudes toward the potential users of modern assisted reproductive technologies threaten to replicate eugenics’ same discriminatory practices.
In this book, Daar asserts how barriers that block certain people’s access to reproductive technologies are often founded on biases rooted in notions of class, race, and marital status. As a result, poor, minority, unmarried, disabled, and LGBT individuals are denied technologies available to well-off nonminority heterosexual applicants. An original argument on a highly emotional and important issue, this work offers a surprising departure from more familiar arguments on the issue as it warns physicians, government agencies, and the general public against repeating the mistakes of the past.
Lunch will be provided.
Intellectual Life Workshop: Dan Burk
1/30/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Dan Burk, Chancellor's Professor of Law, UCI School of Law, will be presenting his paper, "Copyright and the Algorithmic Assemblage".
Abstract:
Automated decision-making, coupled with data profiling, is increasingly being deployed to mediate or to assist in legal determinations across a range of domains including corporate law, criminal law, contract, and tort. In the area of copyright, “Big Data” profiling proposals include the personalized modulation of infringement liability based on consumer market profiles. This work postulates using a consumer’s algorithmically determined willingness to pay as a metric to assign liability for copyright infringement. If the protected content were available only at a price higher than the consumer’s algorithmically determined willingness to pay, no liability would accrue for copying the work. Conversely, if the protected work were available at or below the consumer’s expected willingness to pay, liability would attach.
However, an increasingly robust sociological literature on human interaction with algorithms demonstrates that such approaches will likely distort the markets in which they are applied. Consequently, in this paper, I begin to map out the intersection between the social construction of markets and the social construction of data profiles in the context of intellectual property law. I begin by examining the problematic assumptions that economic consumer metrics bring to copyright. I then turn to consider the use of algorithmic data processing in determining such metrics, outlining first the decontextualized nature of algorithmic data ingestion, and then the strong social reflexivity effects associated with algorithmic scoring.
When applied to copyright liability, these effects can be expected to categorically re-structure both markets and market actors associated with copyright. I further suggest that when taken as a metric for judicial determinations of liability, the social effects of algorithmic categorization can be expected to generate unexpected and perverse outcomes. Thus, reliance upon algorithmic consumer scoring is not merely problematic for copyright policy, and has implications not only for algorithmically determined copyright liability, but for the use of algorithmic metrics in other areas of law as well.
Lunch will be provided.
Intellectual Life Workshop: Allegra McLeod
1/9/2019
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Allegra McLeod, Professor of Law at Georgetown Law
Professor McLeod will be presenting her paper, “Envisioning Abolition Democracy” (forthcoming in Harvard Law Review 2019).
Abstract:
Contemporary movements for penal abolition have introduced new conceptions of justice and democracy — devising alternative means of preventing and responding to serious violent crime while working to realize more generally equitable conditions of collective life. This essay argues that this abolitionist conception of justice presents a powerful challenge to existing ideas of legal justice. Whereas conventional accounts of legal justice emphasize the administration of justice through individualized adjudication and corresponding punishment or remuneration (most often in idealized terms starkly at odds with actual legal processes), abolitionist justice offers a more compelling and material effort to realize justice—one where punishment is exchanged for accountability and repair, and discriminatory criminal law enforcement is replaced by addressing the systemic roots of poverty and violence.
Lunch will be provided.
11/19/2018
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
As part of the UCI Law & Korea University School of Law Joint Symposium, Asif Qureshi, Professor of International Economic Law at the Korea University School of Law, will present his paper, “Contextualising International Law in Northeast Asia."
Hosted by the Korea Law Center and co-sponsored by GLAS.
Intellectual Life Workshop: Hiroshi Motomura
9/12/2018
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Hiroshi Motomura, Susan Westerberg Prager Distinguished Professor of Law, UCLA School of Law (Immigration law, civil procedure) will present his paper, "The New Migration Law".
Abstract:
Immigration law no longer reflects the facts or the politics of migration. A new migration law needs to emerge. Understanding current shortcomings and mapping a new path requires asking four questions that often arise separately but are rarely analyzed together.
First, I probe how U.S. immigration law applies a civil rights framework as a legacy of debates over unauthorized migration. But this framework distracts from economic justice and is less persuasive in responding to forced migrants from outside the United States.
Second, I analyze the traditional commitment to a separate scheme of refugee protection. The new migration law must acknowledge that it is futile to start with a sharp and momentous distinction between refugees and all other migrants. The real challenge is dealing fairly with forced migrants who seek protection but do not qualify as refugees.
Third, I look beyond civil rights and refugee protection to explore how sound response to large-scale migration can emerge from rethinking how migration is linked to citizenship, and from harnessing trade and development to give migrants real choices to move temporarily, to stay at home, or in some cases to move permanently.
Fourth, I examine how migration undermines the economic security or triggers the deeper anxieties of citizens. Only if the new migration law addresses these concerns will the immigration system be able to isolate racial and religious bias, meet the needs of the U.S. economy, and address unauthorized migration effectively.
These four inquiries combine to show how much of current law is too narrow. I question the traditional separation of immigration and citizenship law from refugee and asylum law, and the divide between the law of migration and the legal schemes governing international trade and development. This broader lens brings into focus what the new migration law must do.
Lunch will be provided.
Intellectual Life Workshop: Eric Talley
9/5/2018
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Eric Talley
Isidor & Seville Sulzbacher Professor of Law
Co-Director, Millstein Center for Global Markets and Corporate Ownership
Columbia Law School
Corporate Law, Corporate Finance, Corporate Governance, Contract and Commercial Law, Economic Analysis of Law, Mergers and Acquisitions, Machine Learning and Predictive Coding
Professor Talley will be presenting his paper (with Joshua Mitts), “Informed Trading and Cybersecurity Breaches” (attached).
Abstract: Cybersecurity has become a significant concern in corporate and commercial settings, and for good reason: a threatened or realized cybersecurity breach can materially affect firm value for capital investors. This paper explores whether market arbitrageurs appear systematically to exploit advance knowledge of such vulnerabilities. We make use of a novel data set tracking cybersecurity breach announcements among public companies to study trading patterns in the derivatives market preceding the announcement of a breach. Using a matched sample of unaffected control firms, we find significant trading abnormalities for hacked targets, measured in terms of both open interest and volume. Our results are robust to several alternative matching techniques, as well as to both cross-sectional and longitudinal identification strategies. All told, our findings appear strongly consistent with the proposition that arbitrageurs can and do obtain early notice of impending breach disclosures, and that they are able to profit from such information. Normatively, we argue that the efficiency implications of cybersecurity trading are distinct — and generally more concerning — than those posed by garden-variety information trading within securities markets. Notwithstanding these idiosyncratic concerns, however, both securities fraud and computer fraud in their current form appear poorly adapted to address such concerns, and both would require nontrivial re-imagining to meet the challenge (even approximately).
Lunch will be provided.
Intellectual Life Workshop: Ganesh Sitaraman
8/22/2018
12:00:00 PM to 1:00:00 PM
401 East Peltason Drive Irvine, CA 92697-8000
Ganesh Sitaraman
Professor of Law, Vanderbilt University Law School
Constitutional law, foreign relations law, administrative law, regulation, political theory, institutional design, international law
Professor Sitaraman will be presenting his paper (with Timothy Meyer), “Trade and the Separation of Powers”.
Introduction (abridged): There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I authorities over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic economics paradigm dominated in the nineteenth century, and the foreign affairs paradigm from the mid-twentieth century.
Since the end of the Cold War, however, trade law and policy has become increasingly divisive and contentious. Trade law and policy entered a new era of liberalization, characterized by international organizations (like the WTO) and a shift to mini-lateral free trade agreements. By 2016, backlash was in full force, with candidates Donald Trump, Bernie Sanders, and Hillary Clinton all coming out against the Trans-Pacific Partnership (TPP). Since taking office, President Trump has instituted high tariffs on solar panels, threatened to withdraw from NAFTA, and sparked concern about a trade war with China.
This Article makes three contributions. First, we argue that the current discontent over trade is not just a matter of the distribution of economic gains and losses but a matter of the distribution of constitutional powers. Second, we make a normative case for rebalancing trade within the constitutional structure. Finally, we apply this rebalanced framework for trade law and policy to a variety of contemporary debates, including the role of fast track authority in negotiating and approving trade agreements, the President’s power to declare trade wars, the scope of the President’s authority to withdraw from trade agreements, the use of unorthodox international agreements in the commercial context, and the increasing conflict between trade agreements and state and local authority, which we term “trade federalism.”
Lunch will be provided.