Recent uclalaw_plltwps items

The Coherence of Prison Law

Thu, 5 Mar 2026 00:00:00 +0000

The Coherence of Prison Law

Transinstitutional Policing

Thu, 16 Jan 2025 00:00:00 +0000

Transinstitutional Policing

Constitutional Recalibration: Lessons from New Mexico

Thu, 19 Dec 2024 00:00:00 +0000

Constitutional Recalibration: Lessons from New Mexico

Detained Immigration Courts

Thu, 19 Dec 2024 00:00:00 +0000

Detained Immigration Courts

Rights of Nature: Fact and Fiction

Thu, 19 Dec 2024 00:00:00 +0000

Rights of Nature: Fact and Fiction

Decommodifying Electricty

Thu, 19 Dec 2024 00:00:00 +0000

Decommodifying Electricty

Who will Govern Gaza? Lessons from 1957

Thu, 19 Dec 2024 00:00:00 +0000

Who will Govern Gaza? Lessons from 1957

De-Risking Environmental Law

Thu, 19 Dec 2024 00:00:00 +0000

De-Risking Environmental Law

The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law

Thu, 19 Dec 2024 00:00:00 +0000

The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law

The Co-optation of Restorative Justice and its Consequence for an Abolitionist Future

Thu, 19 Dec 2024 00:00:00 +0000

The Co-optation of Restorative Justice and its Consequence for an Abolitionist Future

Monell's Quick Fix

Thu, 19 Dec 2024 00:00:00 +0000

Monell's Quick Fix

Owens Valley Redux: The Case for Los Angeles and Why It Matters for The Planet

Thu, 19 Dec 2024 00:00:00 +0000

Owens Valley Redux: The Case for Los Angeles and Why It Matters for The Planet

Putting Freedom of Contract in its Place

Thu, 19 Dec 2024 00:00:00 +0000

Putting Freedom of Contract in its Place

Comparison of Procedures in Current Section 501(p) and H.R. 6408

Thu, 19 Dec 2024 00:00:00 +0000

Comparison of Procedures in Current Section 501(p) and H.R. 6408

The Past Present & Future of the Safe Water Drinking Act (2024 Revision)

Thu, 19 Dec 2024 00:00:00 +0000

The Past Present & Future of the Safe Water Drinking Act (2024 Revision)

With Regard for Persons

Thu, 19 Dec 2024 00:00:00 +0000

With Regard for Persons

Managing Pro Se Prisoner Litigation

Thu, 19 Dec 2024 00:00:00 +0000

Managing Pro Se Prisoner Litigation

States a Bulwarks Against, or Potential Faciliators of, Election Subversion

Thu, 19 Dec 2024 00:00:00 +0000

States a Bulwarks Against, or Potential Faciliators of, Election Subversion

The Statutory Influence of Tribal Lay Advocates

Thu, 19 Dec 2024 00:00:00 +0000

The Statutory Influence of Tribal Lay Advocates

(Un) Vanishing the Tribe

Thu, 19 Dec 2024 00:00:00 +0000

(Un) Vanishing the Tribe

From Bloggers in Pajamas to the Gateway Pundit: How Government Entities do and Should Identify Professional Journalists For Access and Protection

Thu, 19 Dec 2024 00:00:00 +0000

From Bloggers in Pajamas to the Gateway Pundit: How Government Entities do and Should Identify Professional Journalists For Access and Protection

Who are the Bearers of Tort Law’s Duties?

Thu, 19 Dec 2024 00:00:00 +0000

Who are the Bearers of Tort Law’s Duties?

The UCLA Law COVID Behind Bars Data Project: Doing Social Justice Work from Inside a Law School

Tue, 17 Dec 2024 00:00:00 +0000

The UCLA Law COVID Behind Bars Data Project: Doing Social Justice Work from Inside a Law School

Comparative Political Process Theory II

Tue, 17 Dec 2024 00:00:00 +0000

Comparative Political Process Theory II

The Inequality of Bargaining Power Principle

Tue, 17 Dec 2024 00:00:00 +0000

The Inequality of Bargaining Power Principle

Nonprofit Law as the Tool to Kill What Remains of Campaign Finance Law: Reluctant Lessons from Ellen Aprill

Tue, 17 Dec 2024 00:00:00 +0000

Nonprofit Law as the Tool to Kill What Remains of Campaign Finance Law: Reluctant Lessons from Ellen Aprill

The Institutional Hearing Program: A Study of Prison-Based Immigration Courts in the United States

Thu, 26 Sep 2024 00:00:00 +0000

This article presents the findings of the first research study of the Institutional Hearing Program (IHP), a prison-based immigration court system run by the U.S. Department of Justice. Although the IHP has existed for four decades, little is publicly known about the program’s origin, development, or significance. Based on original analysis of archival records, this study makes three central contributions. First, it traces the origin and growth of the IHP within federal, state, and municipal correctional facilities. Notably, although the IHP began in 1980 as a program to deport Cuban asylum seekers held in civil detention in an Atlanta prison, it now operates to deport noncitizens serving prison sentences in twenty-three federal prisons, nineteen state prison systems, and a few municipal jails. Second, this article uncovers the crucial role that prison-based immigration courts have played in shaping the design of carceral institutions around the priorities of an immigration system...

Temptation, Sinlessness, And Impeccability

Thu, 22 Aug 2024 00:00:00 +0000

Hebrews 4:15 says that Jesus was tempted like other human beings yetnever sinned. Sinlessness is not the same as impeccability. Chalcedonian Christology orsome variant of it seems necessary to show that Jesus was metaphysically unable to sin.Metaphysical impossibility to sin, though, appears to rule out temptation as experienced byordinary human beings. This paper argues that Oliver D. Crisp, T. A. Hart, Brian Leftow,and Gerald O’Collins all fall short in trying to show how Jesus was both impeccable andtempted as we are.

APPLYING MILITANT DEMOCRACY TO DEFEND AGAINST SOCIAL MEDIA HARMS

Mon, 27 Nov 2023 00:00:00 +0000

APPLYING MILITANT DEMOCRACY TO DEFEND AGAINST SOCIAL MEDIA HARMS

Embedded Healthcare Policing

Thu, 2 Nov 2023 00:00:00 +0000

Embedded Healthcare Policing

Democratic Representation as Duty Delegation

Thu, 2 Nov 2023 00:00:00 +0000

Democratic Representation as Duty Delegation

Ralph Bunche and the Birth of UN Peacekeeping

Thu, 2 Nov 2023 00:00:00 +0000

Ralph Bunche and the Birth of UN Peacekeeping

What the World Can Teach Us About Supreme Court Reform

Thu, 2 Nov 2023 00:00:00 +0000

What the World Can Teach Us About Supreme Court Reform

Democratic Design and the Twin Contemporary Challenges of Fragmented and Unduly Concentrated Political Power

Thu, 2 Nov 2023 00:00:00 +0000

Democratic Design and the Twin Contemporary Challenges of Fragmented and Unduly Concentrated Political Power

Hidden Delegations: The Assignment of Contractual Rights and Consumer Debt

Thu, 2 Nov 2023 00:00:00 +0000

Hidden Delegations: The Assignment of Contractual Rights and Consumer Debt

Unfit to Print: Government Speech and the First Amendment

Thu, 2 Nov 2023 00:00:00 +0000

Unfit to Print: Government Speech and the First Amendment

The Miseducation of Carceral Reform

Wed, 1 Nov 2023 00:00:00 +0000

The Miseducation of Carceral Reform

The Past Present & Future of the Safe Water Drinking Act - 2022 Rev.

Wed, 1 Nov 2023 00:00:00 +0000

The Past Present & Future of the Safe Water Drinking Act - 2022 Rev.

Unfair Artificial Intelligence: How FTC Intervention Can Overcome the Limitations for Discrimination Law

Wed, 1 Nov 2023 00:00:00 +0000

Unfair Artificial Intelligence: How FTC Intervention Can Overcome the Limitations for Discrimination Law

FREE-WORLD LAW BEHIND BARS

Thu, 7 Jul 2022 00:00:00 +0000

ABSTRACT. What law governs American prisons and jails, and what does it matter? This Article offers new answers to both questions.

To many scholars and advocates, “prison law” means the constitutional limits that the Eighth Amendment and Due Process Clauses impose on permissible punishment. Yet, as I show, “free-world” regulatory law also shapes incarceration, determining the safety of the food imprisoned people eat, the credentials of their health-care providers, the costs of communicating with their family members, and whether they are exposed to wildfire smoke or rising floodwaters.

Unfortunately, regulatory law’s protections often recede at the prison gate. Sanitation inspectors visit correctional kitchens, find coolers smeared with blood and sinks without soap—and give passing grades. Medical licensure boards permit suspended doctors to practice—but only on incarcerated people. Constitutional law does not fill the gap, treating standards like a threshold...

Strict Scrutiny & The Black Body

Thu, 7 Jul 2022 00:00:00 +0000

When people in law think about strict scrutiny, often they are also thinking about equal protection

law’s treatment of race. For more than four decades, scholars have vigorously challenged that legal regime. Yet none of that contestation has interrogated the social manifestation of strict scrutiny. This Article does that work. Its central claim is that Black people live under a social regime of strict scrutiny that treats the mere sight of Blackness as a suspect classification. This social regime trades on some of the same racial logics that underwrite the legal regime. Like its legal counterpart, the social version of strict scrutiny includes both “compelling justification” and “narrow tailoring” prongs. And just as these prongs are used to justify, adjudicate, and regulate the use of race in the legal context, they are used to justify, adjudicate, and regulate the presence of race, and more precisely, Blackness, in the social context. The first prong...

The Carceral Labor Continuum: Beyond the Prison Labor/Free Labor Divide

Fri, 4 Jun 2021 00:00:00 +0000

The Carceral Labor Continuum: Beyond the Prison Labor/Free Labor Divide

The Poverty of Theory: Public Problems, Instrument Choice, and the Climate Emergency

Mon, 24 May 2021 00:00:00 +0000

The instrument choice debate has been a fixture of environmental law for much of the last three decades. While this debate has led to a much sharper focus on the relative merits of different regulatory tools in confronting environmental problems, it has also left the field unprepared to conceive and implement an adequate response to complex, multifaceted challenges such as climate change. Using the case of emissions trading, this Article investigates how the instrument choice debate has impoverished our conception of government and limited our capacity to respond to the climate crisis. The central claim is that the overly abstract theory of instrument choice that has underwritten widespread enthusiasm for emissions trading and other forms of carbon pricing over the last three decades has led to a sharply diminished view of public engagement and government problem solving. In advancing this claim, the Article makes three main contributions. First,...

Questioning Bonhoeffer on Temptation

Thu, 18 Mar 2021 00:00:00 +0000

This article engages critically and constructively with Dietrich Bonhoeffer’s biblical study ‘Temptation’ (1938). His study does not always do justice to the text of the New Testament or the theodicean and hamartiological issues pertaining to temptation. And his position that biblically temptation is not the testing of strength, but rather the loss of all strength and defenceless deliverance into Satan’s hands, is hard to defend. However, Bonhoeffer’s idea of Christ-reality undergirds his suggestion that all persons can find in Christ participation, help, and grace in resisting temptation. Bonhoeffer’s most important insight, which requires some unpacking, is that ‘my temptation is nothing other than the temptation of Jesus Christ in me.’

Mass Incarceration, Meet COVID-19

Thu, 14 Jan 2021 00:00:00 +0000

With the global pandemic still unfolding, we are only beginning to make sense of the overall impact of COVID-19 on the people who live and work inside American prisons and jails, and of what effect, if any, the pandemic will have on the nation’s continued commitment to mass incarceration under unduly harsh conditions. In this Essay, I take stock of where things now stand. I also consider how we got to this point, and how penal policy would need to change if we are to prevent another round of needless suffering and death when the next pandemic hits. Part I explains why the incarcerated face an elevated risk of infection and potentially fatal complications from COVID-19. Part II describes the measures various corrections administrators took at the start of the pandemic to try to limit viral spread inside jails and prisons, and why, however well-intentioned, these measures were insufficient to bring the virus under control. Part III addresses the steps taken by public officials at...

Get To Work or Go To Jail: State Violence and the Racialized Production of Precarious Work

Fri, 4 Dec 2020 00:00:00 +0000

Work requirements backed by threats of incarceration offer a fertile but neglected site for sociolegal inquiry. These “carceral work mandates” confound familiar accounts of both the neoliberal state’s production of precarious work through deregulation and the penal state’s production of racialized exclusion from labor markets. In two illustrative contexts—child support enforcement and criminal legal debt—demands for work emerge as efforts to increase and then seize earnings from indigent debtors; an ability to pay is defined to include an ability to work. In a third, demands for work are imposed directly through probation, parole, and other community supervision. In each context, the carceral state regulates work outside of prison. It defines appropriate labor conditions through concepts of voluntary unemployment, and it enables employers to discipline or retaliate against workers by triggering state violence. Additionally, mandated work may be removed from employment law protections...

Discrimination and Labour Law: Locating the Market in Maldistribution and Subordination

Fri, 4 Dec 2020 00:00:00 +0000

Discrimination and Labour Law: Locating the Market in Maldistribution and Subordination

Disparate Impact and the Unity of Equality Law

Wed, 2 Dec 2020 00:00:00 +0000

This Article offers a new theory of disparate impact liability. This theory emerges from and advances a unified account of employment discrimination law as a whole. Disparate impact claims target the same distinctive injury as do disparate treatment and nonaccommodation claims: suffering workplace harm because of one’s race, sex, disability, or other protected status. This injury of “status causation” offends basic commitments to equality and individual freedom. Focusing on status causation also draws directly from statutory text emphasizing causation and individual harm, unlike more familiar approaches centered on employers’ decision-making processes or social hierarchy between groups.

A disparate impact claim’s statistical comparison of group outcomes provides evidence that individuals have suffered status causation. Group outcomes are constructed by aggregating individual outcomes. Disparities between group outcomes can emerge only if many individual group members...

The Carceral State at Work: Exclusion, Coercion, and Subordination, in Criminality at Work

Wed, 2 Dec 2020 00:00:00 +0000

This chapter presents a very striking configuration of the relationship between the criminal law and the world of work: in the United States, custodial punishment for criminal offences, bearing especially heavily upon the population of colour, is so extensive as to identify that country as a ‘carceral state’; and it is one in which this enormous resort to imprisonment has seemingly contradictory repressive effects upon the workforce. On the one hand, it excludes many people from the labour market through pervasive discrimination against those with a criminal record. But on the other hand, it coerces many people into work; several institutions require people not currently imprisoned to work or face incarceration as a sanction. The contradiction may be resolved by considering the quality of work at issue, as exclusion from better jobs is complemented by coercion into worse ones: ‘subordinated inclusion’. This transformative effect of criminalization alters one’s basic understanding...

Performative Aspects of Race: “South Asian, Arab, and Muslim” Racial Formation After September 11

Tue, 30 Jun 2020 00:00:00 +0000

This paper identifies and explores mechanisms that individuals use to create and interpret, re-create and re-interpret, "Arab, Muslim, and South Asian" as a racial identity through performance. This concept is important to understanding the law's interpretation and analysis of race. Considering race as performance is important for Critical Race Theory (CRT). CRT's mantra has been that race is a social construct, meaning that race has been constructed from social, cultural, historical, and political contexts within systems and institutions. Devon Carbado and Mitu Gulati point to a deficiency in the concept of race as a social construct at the macro level. They note that CRT often ignores the "racial productivity of the 'choices' people of color make about how they present themselves as racialized persons," and in general the race producing practices of people are often ignored. This paper attempts to examine the "choices" Arabs, Muslims, and South Asians make that purposefully...

Is DNA Evidence Relevant: The Sequel

Tue, 25 Feb 2020 00:00:00 +0000

In admitting DNA sample taken at the crime scene in 2010 to compare it with a DNA sample taken from the defendant in 2020 courts assume that the defendant’s DNA has not changed in the prior ten years. This article questions that assumption using scientific findings published in the journals Scientific American and Science News.

Is DNA Evidence Relevant?

Tue, 25 Feb 2020 00:00:00 +0000

An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection

Wed, 6 Nov 2019 00:00:00 +0000

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a university’s affirmative-action plan that specifically targets Black women, the Essay considers what tier of scrutiny should apply. Because, for the most part, scholars take a race or gender approach to equal-protection law, they have not engaged that doctrinal puzzle and its implications for tiers-of-scrutiny writ large.

Lying, Reciprocity, and Free Speech – A Reply to Eight Critics

Wed, 6 Nov 2019 00:00:00 +0000

In this article, I reply to eight critics of my book Speech Matters: On Lying, Morality, and the Law. The topics include lying, promising, reciprocity, free speech, and the testimonial duties of institutions.

Functions of Geoengineering Research Governance

Mon, 28 Oct 2019 00:00:00 +0000

Proposed geoengineering interventions, like other high-stakes and potentially disruptive technologies, present both a compelling case for expanded research to inform future decisions, and significant concerns about societal harms that may follow from this research, directly or indirectly. In response, there have been widespread calls to both expand research and govern this research with greater care and scrutiny than typical of the normal processes that govern all research areas. We propose that for geoengineering and similarly controversial issues, governance of research must fulfill three broad functions. First, processes are needed that enable reliable research, by providing the authorization, resources, and management necessary for research to proceed, together with the strategic planning and quality controls to ensure that research results are useful and relevant to inform societal choices. Second, processes are needed to assess potential harms or risks from research activities...

Teacher’s Manual for The Past, Present and Future of the Safe Drinking Water Act

Fri, 4 Oct 2019 00:00:00 +0000

Thanks for considering teaching this primer on SDWA. I enjoy teaching this in the classroom and there are a lot of different entry points for productive discussion. Rather than provide canned lecture notes, below I describe the key points I raise when teaching the materials and opportunities for class discussion. The specific topics are set out in bold below for easier identification. Please contact me at salzman@ucsb.edu if you have any questions about the materials.

When teaching SDWA, I briefly highlight drinking water issues in the news (such as Newark or PFOA and PFAS contamination in the Fall of 2019), but I then turn to history. I ask the students to place themselves 500 years ago or 1500 years ago and ask what they would do were they charged with providing safe drinking water to their community. It turns out the challenges are identical to today.

The Past, Present and Future of the Safe Drinking Water Act

Thu, 3 Oct 2019 00:00:00 +0000

The Safe Drinking Water Act (SDWA) has long been "the statute that environmental law courses forgot." It receives scant or no coverage in all but a few environmental law casebooks and is not covered in most environmental law courses. After Flint, though, drinking water problems have become high profile and SDWA's exclusion seems increasingly untenable. The law raises important issues of cost and risk assessments, environmental justice, federalism, private governance, and human rights, among others. To encourage teaching the statute, this chapter is intended for a course syllabus. Twenty pages long, it is written in an accessible style and covers the history of the law, its key provisions, successes, and challenges. To stimulate classroom discussion, it includes a Questions and Discussion section and Teacher's Manual. The text is free for all non-commercial use.

Lexipol: The Privatization of Police Policymaking

Tue, 11 Jun 2019 00:00:00 +0000

This Article is the first to identify and analyze the growing practice of privatized police policymaking. In it, we present our findings from public records requests that reveal the central role played by a limited liability corporation—Lexipol LLC—in the creation of internal regulations for law enforcement agencies across the United States. Lexipol was founded in 2003 to provide standardized policies and training for law enforcement. Today, more than 3,000 public safety agencies in thirty-five states contract with Lexipol to author the policies that guide their officers on crucial topics such as when to use deadly force, how to avoid engaging in racial profiling, and whether to enforce federal immigration laws. In California, where Lexipol was founded, as many as 95% of law enforcement agencies now rely on Lexipol’s policy manual. Lexipol offers a valuable service, particularly for smaller law enforcement agencies that are without the resources to draft and update policies on...

Prison Conditions

Wed, 21 Mar 2018 00:00:00 +0000

In American prisons, two of the worst pathologies—hypermasculine performance and gang activity—are best understood as strategies of self-help engaged in by people who cannot trust the prison authorities to keep them safe. Given the choice, the overwhelming majority of people in prison would prefer to drop the mask and be themselves. But letting down one’s guard is a luxury enjoyed only by people who feel safe. If we want the people we incarcerate to grow and change, we need to design and operate the prisons so that people can be in company with others without needing to be constantly afraid. In this chapter, I identify several strategies prison administrators can pursue in their facilities right now to reduce the threat of violence in men’s prisons and therefore enhance prisoners’ safety without resorting to solitary confinement. But keeping people safe while enabling them to interact with others, though essential, is not sufficient. It is also necessary to provide access to meaningful...

Faculty Law Review Articles, 1894-2017

Fri, 16 Mar 2018 00:00:00 +0000

A list of hundreds of law review articles written by faculty members on the subject of "evidence"---narrowly defined to include only those topics covered by the Federal Rules of Evidence or its state clones. Readers who find their articles missing should notify the author who will add them to the next supplement.

The Puzzle of Social Movements in American Legal Theory

Fri, 19 Jan 2018 00:00:00 +0000

In one of the most striking developments in American legal scholarship over the past quarter century, social movements have become central to the study of law. In constitutional theory, movements have emerged as key drivers of legal reform, creating new constitutional ideals and minimizing concerns of activist courts overriding the majority will. In lawyering theory, movements have appeared as mobilized clients in the pursuit of social change, leading political struggle and shifting attention away from concerns about activist lawyers dominating marginalized groups. In a surprising turnabout, social movements—long ignored by legal academics—have now achieved a privileged position in legal scholarship as engines of progressive transformation. Why social movements have come to play this dramatic new role is the central inquiry of this Article. To answer it, the Article provides an original account of progressive legal theory that reveals how the rise of social movements is a...

Movement Lawyering

Wed, 8 Nov 2017 00:00:00 +0000

This Article explores an important development in American legal theory and practice over the past decade: the rise of “movement lawyering” as an alternative model of public interest advocacy focused on building the power of nonelite constituencies through integrated legal and political strategies. Its central goal is to explain why movement lawyering has gained prominence, define its essential features, and explore what it reveals about the current state of efforts to work out an empirically grounded and normatively appealing vision of the lawyer’s role in social change. Toward that end, this Article shows how movement lawyering has long been an important part of progressive legal practice—complicating the standard historical account—while also illuminating the contemporary political and professional shifts that have powered the recent social movement turn. Synthesizing insights from social movement theory and practice, the Article then defines and analyzes the core features...

Access to Justice: Looking Back, Thinking Ahead

Fri, 29 Sep 2017 00:00:00 +0000

This Article seeks to assess our progress and reassess our goals concerning access to justice. It begins in Part I by summarizing the nature of the challenge. Although there is much we do not know about the scope of the problem, the data available suggest a shameful inadequacy of services for the poor and a declining commitment of federal funds to address it. The remainder of the Article explores the most plausible responses. Part II reviews the role of technology, self-help, and nonlawyer services. Part III analyzes the extent of pro bono contributions and what can be done to increase them. Part IV surveys the evolution and contributions of public interest law, and how best to support it. Part V concludes with an agenda for reducing the justice gap. It argues for greater involvement of legal educators and practitioners in expanding understanding of the problem and supporting the most cost-effective solutions.

The Social Movement Turn in Law

Mon, 17 Jul 2017 00:00:00 +0000

The rise of social movements in US legal scholarship is a current response to an age-old problem in progressive legal thought: harnessing law for social change while maintaining a distinction between law and politics. This problem erupted in controversy around the civil rights–era concept of legal liberalism defined by activist courts and lawyers pursuing political reform through law. Contemporary legal scholars have responded by building on social science to develop a new concept — movement liberalism — that assigns leadership of transformative change to social movements to preserve conventional roles for courts and lawyers. Movement liberalism aims to achieve the lost promise of progressive reform, while avoiding critiques of legal activism that have divided scholars for a half-century. Yet rather than resolving the law-politics problem, movement liberalism reproduces long-standing debates, carrying forward critical visions of law that it seeks to transcend.

Explaining Environmental Information Disclosure in China

Wed, 26 Apr 2017 00:00:00 +0000

In recent years, China has adopted a range of measures for information disclosure or “open government information.” This comes as a surprise in an authoritarian system known more for secrecy and information control. Why do authoritarian leaders embrace such mechanisms, and how do state and society actors respond? This Article examines in particular the emergence of environmental information disclosure in China, and makes two main contributions to the scholarly debate on Chinese law and governance.

First, this Article demonstrates how local demand for legal transplant can arise out of diverse (and sometimes competing) societal interests. State, society and international actors saw in information disclosure law a range of possibilities - the prospect of improved environmental performance, greater accountability to citizens, and strengthened state control. This interest convergence among strange bedfellows has enabled the seemingly paradoxical flowering of disclosure...

Rethinking the Foundational Critiques of Lawyers in Social Movements

Mon, 20 Mar 2017 00:00:00 +0000

The question of whether lawyers help or hurt social movements has been hotly debated by legal scholars for nearly half a century. As progressive social movements began to decline in the 1970s, scholars developed a powerful critical account of the role that lawyers had played, stressing how lawyer domination and overinvestment in legal tactics had worked against sustainable grassroots activism. Despite significant changes in politics and the profession since the civil rights period, these foundational critiques of progressive lawyering have persisted, fostering profound skepticism about what lawyers can do “for and to” social movements.This Article argues that the current moment invites reconsideration of these critiques. The rise of new social movements -- from marriage equality to Black Lives Matter to the recent mobilization against President Trump’s immigration order -- and the response of a new generation of movement lawyers eager to lend support has refocused attention on...

State Punishment and Private Prisons

Fri, 10 Mar 2017 00:00:00 +0000

To date, the debate over private prisons has focused largely on the relative efficiency of private prisons as compared to their publicly run counterparts, and has assumed that, if private contractors can run the prisons for less money than the state without a drop in quality, then states should be willing to privatize. This comparative efficiency approach, however, has two significant problems. First, it is concerned exclusively with efficiency, despite the fact that the privatization of prisons arguably implicates more urgent values. Second, it accepts the current state of public prisons as an unproblematic baseline, thus failing to consider the possibility that neither public prisons as presently constituted nor private prisons in the form currently on offer are adequate to satisfy society's obligations to those it incarcerates. In this Article, I examine the private prisons issue from a third perspective, that of liberal legitimacy. On this standard, if our penal policies and...

The Common Law of Pauley Pavilion: Property in Public Places

Fri, 6 Jan 2017 00:00:00 +0000

Many writers have analyzed property interests in public spaces such as parking spots or lines of people waiting for an event. This paper considers the right to play on public basketball courts in a specific (but probably not unique) place: the basketball courts at U.C.L.A. In this instance the right to the place also includes a property interest in the game itself. This may interest those who study other cooperative endeavors.

Ohio v. Clark: Sir Walter Raleigh Meets Kindergarten Cops

Tue, 15 Nov 2016 00:00:00 +0000

All of the Supreme Court's confrontation decisions since Crawford have dealt with statements to or by adults and government officials. In Clark v. Ohio, the Court faced two issues: (1) are private persons held to the same standards regarding testimonial hearsay as police officers? and; (2) are minors subject to the same confrontation standards as adults? As the concurring opinions point out, the majority opinion by Justice Alito waffled on these two questions. This essay explores these points.

A somewhat different version of this essay will appears as § 6371.8 in the 2017 Supplement to 30A Wright & Graham, Federal Practice and Procedure Evidence.

Special Treatment Everywhere, Special Treatment Nowhere

Tue, 31 May 2016 00:00:00 +0000

This symposium essay disputes the conventional wisdom that “special treatment” mandates are exceptional within employment discrimination jurisprudence. To the contrary, they are endemic, and necessarily so. This is true even within disparate treatment jurisprudence. The reasons are twofold. First, remedying discrimination necessarily involves treating its victims differently than nonvictims. Employers are required to, and sometimes do, provide such remedies prior to judicial intervention. When such employer action elicits accusations of “special treatment,” these often reflect a failure or refusal to recognize that subjection to discrimination, not protected status, is the basis for the employer’s decisions. Second, distinguishing victims from nonvictims often requires making distinctions based on race or other protected status. Therefore, remedying discrimination, including disparate treatment, may require treating individuals “specially” according to race. Having identified...

Poverty Unmodified?: Critical Reflections on the Deserving/Undeserving Distinction

Tue, 31 May 2016 00:00:00 +0000

According to a familiar and influential analysis, antipoverty programs are structured by distinctions between the deserving and undeserving poor. Through techniques like behavioral conditions on benefit eligibility, these moral distinctions divide the poor and interfere with providing assistance to all those in need. This analytical framework animates much critical scholarship on social welfare policy and guides most welfare rights litigation about benefit eligibility requirements.This Essay challenges this “deservingness analytic” by questioning its separation of deservingness from need, its imagination of the poor as a preexisting population whose need can be conceptualized and determined apart from the moralistic concerns of deservingness. This supposed divide between deservingness and need is breached from both sides: Seemingly moralistic concerns with personal behavior often can be recast as assessments of economic need, and conventional techniques of measuring economic need...

Putting Intent in Its Place: A New Direction for Title VII

Tue, 31 May 2016 00:00:00 +0000

This very short essay charts a path forward for Title VII by looking through the lens of the ADAs’ analysis of nonaccommodation as discrimination. The basic idea is that employment discrimination law protects individuals from suffering harm at work because of their race, sex, etc., but only when there are sufficient reasons to hold their employer responsible. That occurs not only when an employer acts with discriminatory intent, but also when an employs denies a reasonable accommodation needed because of disability or adheres to a practice with a disparate impact. This common structure can be seen in the ways that Title VII claims nominally framed as disparate treatment or disparate impact converge with nonaccommodation analysis, notwithstanding its lack of formal recognition under Title VII. The general strategy is to displace discriminatory intent by appreciating its relevance while denying its centrality, and not simply to expand the contours of disparate treatment as implicit...

Seeing Work, Envisioning Citizenship

Tue, 31 May 2016 00:00:00 +0000

This short symposium essay surveys the relationships between identifying workers and identifying social citizens. We analyze worker status along dimensions of livelihood, production, discipline, and status. Each of these illuminates but also troubles the conventional conflation of work and employment. That trouble arises in part because an activity’s legibility as work often draws on racialized and gendered understandings of that activity and those who perform it, as in the case of domestic work. Understanding the constructed and contested nature of work both explicates and complicates the appeal of more inclusive accounts of work as a strategy of social inclusion.

Disparate Impact and the Unity of Equality Law

Tue, 10 May 2016 00:00:00 +0000

This Article offers a new theory of disparate impact liability. This theory emerges from and advances a unified account of employment discrimination law as a whole. Like disparate treatment and non-accommodation, disparate impact claims target a distinctive injury to individuals: suffering workplace harm because of one’s race, sex, disability or other protected status. That injury of “status causation” offends basic commitments to equality and individual freedom. Rather than focusing on employers’ decision-making processes or on social hierarchy between groups, this approach draws directly from statutory text emphasizing causation and individual harm.

The Many Meanings of 'Because Of': A Comment on Inclusive Communities Project

Tue, 10 May 2016 00:00:00 +0000

This brief essay critically analyzes the role of causation in the Supreme Court’s recent Inclusive Communities Project decision. The Court held disparate impact claims cognizable under the Fair Housing Act, but two powerful dissents objected that the statute’s “because of race” language could reach only disparate treatment. The majority offered no competing account of this language, which recurs throughout antidiscrimination statutes. This, in microcosm, is antidiscrimination jurisprudence today. The Court’s most conservative wing has a clear, narrow conception sharply limited by discriminatory intent; the more liberal Justices chafe at those limits but offer no systematic alternative. This essay supplies a simple interpretation of “because of race,” emphasizing causation over motivation. This account not only defeats the dissents’ objections but also points the way toward a comprehensive antidiscrimination theory that displaces discriminatory intent, no matter how broadly...

Does Work Law Have a Future if the Labor Market Does Not?

Tue, 10 May 2016 00:00:00 +0000

This Essay is based on the 37th Annual Kenneth M. Piper Lecture. It offers a new perspective on the much-discussed “future of work.” That discussion typically highlights changes within the labor market that undermine the employment relationship’s role as the bedrock for work regulation. But might something even deeper be afoot, namely the disintegration of “the labor market” itself? Several recent developments challenge the legal construction of employment as occurring wholly inside a distinctive, and distinctively economic, market sphere. The Essay considers Uber and the relationship between work and “sharing,” Hobby Lobby and the relationship between work and religion, the unrest in Ferguson and the relationship between work and criminal justice, and Friedrichs and the relationship between work and politics. Each presents a conservative challenge to labor and employment law by blurring the boundaries between the labor market and other spheres, not by purging...

Get To Work or Go To Jail: Workplace Rights Under Threat

Tue, 10 May 2016 00:00:00 +0000

When many people consider work and the criminal justice system, they commonly consider how difficult it is for people coming out of jail to find work. Yet, a recent UCLA Labor Center report, Get to Work or Go To Jail: Workplace Rights Under Threat, goes further by exploring the ways in which the criminal justice system can also lock workers on probation, parole, facing court-ordered debt, or child support debt into bad jobs. Because these workers face the threat of incarceration for unemployment, the report finds that they cannot afford to refuse a job, quit a job, or to challenge their employers.

Among other findings, the report concludes:

*Nearly 5 million Americans and 400,000 Californians are under probation or parole

*Many of these workers may be stripped of standard labor protections such such as minimum wage and workers compensation

*On any given day, about 9,000 nationwide are in prison or jail for violating the probation or parole requirement...

Moratoria for Global Governance and Contested Technology: The Case of Climate Engineering

Tue, 12 Apr 2016 00:00:00 +0000

Calls for moratoria are a frequent response to controversial issues in international diplomacy and control of technology, and are now prominent in debates over governance challenges posed by climate engineering (CE) – intentional modification of the global climate to reduce changes caused by human emissions of greenhouse gases. Based on twelve historical cases of moratoria in other areas of diplomatic conflict or controversial science and technology, we present a novel analytic framework to examine purposes, design characteristics, and conditions for effectiveness of moratoria, based on a taxonomy of three ideal moratorium types: risk-management moratoria, principled-conflict moratoria, and bargaining moratoria. We use this framework to examine potential contributions and design conditions for a moratorium on CE. A moratorium for CE could seek primarily to advance risk-management aims or bargaining aims, with distinct implications for its timing, scope, associated actors, and...

Preemptive Strike: Law in the Campaign for Clean Trucks

Wed, 14 Jan 2015 00:00:00 +0000

Preemptive Strike: Law in the Campaign for Clean Trucks

Review of The Tallinn Manual on the International Law Applicable to Cyber Warfare (Michael N. Schmitt ed., 2013)

Thu, 6 Nov 2014 00:00:00 +0000

Review of The Tallinn Manual on the International Law Applicable to Cyber Warfare (Michael N. Schmitt ed., 2013)

Admonishing Jurors to Disregard What They Haven't Heard

Tue, 27 May 2014 00:00:00 +0000

Admonishing Jurors to Disregard What They Haven't Heard

Mistrial by Likelihood Ratio: Bayesian Analysis Meets the F-Word

Tue, 27 May 2014 00:00:00 +0000

Mistrial by Likelihood Ratio: Bayesian Analysis Meets the F-Word

Teaching Evidence the "Reel" Way

Tue, 27 May 2014 00:00:00 +0000

Teaching Evidence the "Reel" Way

Communicating Implausibilities During Cross Examination

Tue, 27 May 2014 00:00:00 +0000

Communicating Implausibilities During Cross Examination

Taking Lawyering Skills Training Seriously

Wed, 9 Apr 2014 00:00:00 +0000

The lawyering skills so thoroughly explored in Gary Bellow and Bea Moulton's The Lawyering Process continue to be a major focus of clinical legal education. Distinguishing between case-centered and skill-centered clinical programs, this essay explores whether clinical courses provide a sufficient foundation for students to "transfer" the lawyering skills they are exposed to in law school to the practice of law. Drawing on the recent work of educational researchers and medical school educators, the essay identifies structural attributes that enhance the likelihood of promoting lawyering skills "transfer." The essay argues that case-centered clinical programs tend to lack these attributes and identifies possible structural changes that can increase the likelihood that students will transfer lawyering skills learning from law school to practice.

Class Action Lawyers: Fools for Clients?

Wed, 9 Apr 2014 00:00:00 +0000

Class Action Lawyers: Fools for Clients?

Case Comment: Qualified Immunity - Privatized Governmental Functions

Fri, 21 Mar 2014 00:00:00 +0000

With prison populations increasing rapidly, more and more states are turning to privatization to trim their corrections budgets. Riding the crest of this trend are the private sector prison providers, whose combined business has grown more than fifty percent since 1996 and currently generates revenues of over a billion dollars a year. Industry spokespeople and other advocates claim that prison privatization also benefits the taxpayer by saving states millions of dollars annually in incarceration costs. Civil libertarians, however, fear that placing responsibility for prisoners in private hands may lead to violations of inmates' constitutional rights. In Richardson v. McKnight, the Supreme Court held that private prison guards are not entitled to qualified immunity from liability under 42 U.S.C. § I983. Finding that competitive market forces operate to discourage private prison guards from displaying unwarranted timidity in the performance of their duties, the Court saw...

Book Review, Leaving the Law Behind

Thu, 20 Mar 2014 00:00:00 +0000

Reviewing The Rooster’s Egg: On the Persistence of Prejudice, by Patricia Williams.

Recent Legislation: Welfare Reform

Thu, 20 Mar 2014 00:00:00 +0000

Recent Legislation: Welfare Reform

Note: Making Docile Lawyers: An Essay on the Pacification of Law Students

Thu, 20 Mar 2014 00:00:00 +0000

Harvard Law School (HLS) occupies a privileged place in the American cultural imagination. Notwithstanding its persistent second place showing in the annual U.S. News and World Report law school rankings, Harvard Law School continues to represent, for many people both inside and outside the legal community, the pinnacle of legal education, the breeding ground for the nation's leaders. Given this status, one would expect to find HLS full of confident, enthusiastic, optimistic students who are thoroughly comfortable with themselves and fully prepared upon graduation to take on the world.

In fact, one finds quite the opposite. Far from brimming over with personal and intellectual self-confidence, by the second (2L) year, a surprising number of Harvard Law students come to resemble what one professor has called "the walking wounded": demoralized, dispirited, and profoundly disengaged from the law school experience. What's more, by third (3L) year, a disturbingly...

How Privatization Thinks: The Case of Prisons

Fri, 14 Mar 2014 00:00:00 +0000

Debates over contracting out government functions to private, for-profit entities often play out within a deliberative framework that can be thought of as "comparative efficiency." From this perspective, the decision whether to privatize any given government function turns on which sector, public or private, would perform the relevant function more efficiently. Comparative efficiency thus has two defining features: it views the motivating question as a choice between public and private, and it treats efficiency as the sole value guiding the analysis. That comparative efficiency is the appropriate way to approach the issue of privatization tends to be taken for granted. Its value neutrality is also assumed. In this essay, I challenge these assumptions. Using the example of private prisons, I argue that comparative efficiency operates instead as a rhetorical device that keeps the debate within particular bounds, excluding some concerns altogether and reframing others in ways consistent...

Ethical Lawyering and the Possibility of Integrity

Fri, 14 Mar 2014 00:00:00 +0000

The dominant model of ethical lawyering views lawyers as zealous advocates, who do whatever possible within the bounds of the law to serve their client's interests, regardless of what the lawyers themselves think of their client's ends. More recently, however, legal ethics scholars have begun to challenge the hegemony of this model, arguing that ethical lawyering involves not the suspension of moral judgment but the exercise of it. On this alternative "contextual view," lawyers must, as Deborah Rhode puts it, take "personal moral responsibility for the consequences of their professional acts." In developing this alternative model, Rhode and others have focused on the obligations of ethical lawyers. But any complete account of ethical lawyering also needs a theory of moral character. That is, we must ask not only what ethical lawyers do, but what traits of character ethical lawyers possess which make them able to fulfill their moral responsibilities. In this article, I focus...

Strategic Segregation in the Modern Prison

Fri, 14 Mar 2014 00:00:00 +0000

For more than three decades, the L.A. County Jail has been systematically separating out the gay men and trans women who come through the Jail and housing them wholly apart from the general population. This is to protect them from sexual victimization, to which they are especially vulnerable. This article draws on original research to provide an in-depth account of this segregation unit, which is known as K6G. The aim is both descriptive and evaluative - to describe the mechanics of the program and its implications for residents, and to assess a variety of objections to it. As the article shows, L.A. County has managed to create a surprisingly safe space for the high-risk populations K6G serves. That it has done so in a carceral system that is severely overcrowded and notoriously volatile makes the success of the program even more remarkable. There is, however, no getting around it: with K6G, L.A. County is engaged in a process of state-sponsored, identity-based segregation....

Creating the Permanent Prisoner

Fri, 14 Mar 2014 00:00:00 +0000

Of the 2.3 million people currently behind bars in the United States, only 41,000 - a mere 1.7% - are doing LWOP. Based on these numbers, one might well regard LWOP as the anomaly, and certainly not emblematic of the system as a whole. In this essay, I argue that it is LWOP that most effectively captures the central motivating aim of the contemporary American carceral system: the permanent exclusion from the shared social space of the people marked as prisoners. This exclusionist system has no real investment in successful reentry. Instead, a variety of penal practices combine to ensure against any meaningful loosening of control over the people the state has imprisoned. This essay explores the exclusionary effects of several such practices, including the destructive character of prison conditions, the increasing official reluctance to grant parole, and the collateral consequences of felony convictions, which heavily burden the prospects of newly released offenders. This way of...

Exclusion and Control in the Carceral State

Fri, 14 Mar 2014 00:00:00 +0000

Theorists of punishment typically construe the criminal justice system as the means to achieve retribution or to deter or otherwise prevent crime. But a close look at the way the American penal system actually operates makes clear the poor fit between these more conventional explanations and the realities of American penal practice. Taking actual practice as its starting point, this essay argues instead that the animating mission of the American carceral project is the exclusion and control of those people officially labeled as criminals. It maps the contours of exclusion and control, exploring how this institution operates, the ideological discourse that justifies it, and the resulting normative framework that has successfully made a set of practices that might otherwise seem both inhumane and self-defeating appear instead perennially necessary and appropriate.

Appreciating the “cognitive conventions” by which current penal practices are rendered...

Two Models of the Prison: Accidental Humanity and Hypermasculinity in the L.A. County Jail

Fri, 14 Mar 2014 00:00:00 +0000

This Article considers what can be learned about humanizing the modern American prison from studying a small and unorthodox unit inside L.A. County’s Men’s Central Jail. This unit, known as K6G, has an inmate culture that contrasts dramatically with that of the Jail’s generalpopulation (GP) units. Most notably, whereas life in the Jail’s GP is governed by rules created and violently enforced by powerful inmate gangs, K6G is wholly free of gang politics and the threat of violence gang control brings. In addition, unlike residents of GP, who must take care in most instances to perform a hypermasculine identity or risk victimization, residents of K6G face no pressure to “be hard and tough, and [not] show weakness” and thus can just be themselves—a safer and less stressful posture. The K6G unit is also relatively free of sexual assault, no small thing given that K6G exclusively houses gay and transgender prisoners, who would otherwise be among the Jail’s most vulnerable residents....

Incarceration American-Style

Thu, 13 Mar 2014 00:00:00 +0000

In the United States today, incarceration is more than just a mode of criminal punishment. It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills. In this essay, I argue that this emergent carceral system has become self-generating - that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand. I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens - disproportionately poor people of color - who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control. This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration.

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Cruelty, Prison Conditions, and the Eighth Amendment

Thu, 13 Mar 2014 00:00:00 +0000

The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not withstand scrutiny. As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes.With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders...

Unspoken Truths and Misaligned Interests: Political Parties and the Two Cultures of Civil Litigation

Fri, 8 Nov 2013 00:00:00 +0000

During the last four decades the United States has witnessed first the emergence and then the disappearance of civil litigation as a topic of partisan debate in national politics. Following two centuries in which neither party thought the topic worth mention, in the last decades of the twentieth and first of the twenty-first century, both parties made it part of their agendas. Republican candidates and presidents denounced litigation as a blight; Democratic candidates and presidents embraced it as a panacea. This Essay traces the emergence of this issue, the apparent oddness of the two parties’ stances toward civil litigation, and the ways in which both parties chose to ignore salient characteristics of modern civil litigation—the unspoken truths of my title. Finally, I’ll tentatively suggest some reasons for the disappearance of this issue—at least temporarily—from the political scene.

The Search for Sustainable Legitimacy: Environmental Law and Bureaucracy in China

Thu, 5 Sep 2013 00:00:00 +0000

During China’s 11th five-year plan (2006-11), bureaucrats began to take substantial actions on environmental protection, making major investments in pollution control infrastructure and forcing the shutdown of thousands of outdated facilities and production lines. This was not accomplished through meaningful reform of a notoriously weak environmental law regime. Rather, Chinese authorities turned to cadre evaluation — the system for top-down bureaucratic personnel assessments — to set high-priority, quantitative environmental targets designed to mobilize governors, mayors, and state-owned enterprise leaders in every corner of China’s massive bureaucracy.

While conventional analysis has primarily viewed this effort through the lens of environmental protection, this Article argues that “environmental cadre evaluation” is better understood as something more fundamental. Chinese authorities have embraced environmental cadre evaluation as a tool for limiting risks to the party-state’s...