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Progressive Algorithms
Full text linkOur criminal justice system is broken. Problems of mass incarceration, racial disparities, and susceptibility to error are prevalent in all phases of the criminal process. Recently, two dominant trends that aspire to tackle these fundamental problems have emerged in the criminal justice system: progressive prosecution—a model of prosecution adopted by elected reform-minded prosecutors that advance systemic change in criminal justice—and algorithmic decision-making—characterized by the adoption of statistical modeling and computational methodology to predict outcomes in criminal contexts.
While there are growing bodies of literature on each of these two trends, thus far, they have not been discussed in tandem. This Article is the first to argue that scholarship on criminal justice reform must consider both developments and strive to reconcile them. We argue that while both trends promise to address similar key flaws in the criminal justice system, they send diametrically opposed messages concerning the role of humans in advancing criminal justice reform: Progressive prosecution posits humans are the solution, while algorithmic tools suggest human discretion is the problem. This clash reflects both normative frictions and deep differences in the modus operandi of each of these paradigms. Such tensions are not only theoretical but have practical implications such that each approach tends to inhibit the advantages of the other with respect to bettering the criminal justice system.
We argue against disjointly embedding progressive agendas and algorithmic tools in criminal justice systems. Instead, we offer a decision-making model that prioritizes principles of accountability, transparency, and democratization without neglecting the benefits of computational methods and technology. Overall, this Article offers a framework to start thinking through the inherent frictions between progressive prosecution and algorithmic decision-making and the potential ways to overcome them. More broadly, the Article contributes to the discussions about the role of humans in advancing legal reforms in an era pervaded by technology
Antitrust Deterrence of Patent Holdup: Refocusing on Competition as a Driver of Technological Innovation
Full text linkTraditionally, antitrust law has served as both deterrent against and remedy for the monopolistic behavior known as patent holdup. Yet those who profit from patent holdup not only deny its existence but also until very recently wielded an enticing critique of the role of antitrust law in its deterrence—namely, that antitrust law (1) disincentivizes technological innovation and (2) incentivizes infringement.
After exploring patent holdup and why the modern and historical goals of antitrust law are well suited to combatting it, this Note provides direct and circumstantial evidence of the existence of patent holdup as a real-world problem. It also looks at how a sociopolitical power imbalance at work from 2017 until 2021 bolstered attempts to immunize standard-essential patents from antitrust scrutiny. Next, it covers why contract law alone is insufficient to remedy or deter patent holdup. Additionally, this Note debunks the misguided admonition that innovation will be deterred by antitrust scrutiny. Such admonition is premised on the notions that unqualified patent rights, such as the right to maximize prices and the right to exclude others from practicing one’s patent, are necessary incentives for innovation and that antitrust enforcement suppresses these incentives. This Note ends with a realistic view of the role of injunctions in the context of standard-essential patents and the conclusion that a recent governmental policy shift towards continuing to allow firms to seek injunctions while preserving the role of antitrust law is the only sensible approach to take
The Law of Disposable Children: Searches in Schools
Full text linkIt’s the forgotten, discarded, disposable people. That’s so often who you find in jail—the forgotten.
—Rev. David Kelly, explaining why he devotes himself to working with children coming out of the juvenile detention system.
Many schools treat children as “disposable.”
—Francisco Arenas, Juvenile Probation Officer at Cook County Juvenile Probation.
Schoolchildren are being strip-searched based on little or no reasonable suspicion, and schoolchildren are being targeted for searches based on their race, disability status, gender, or homelessness. This is possible because the Supreme Court has issued only two opinions in its history about the right of schoolchildren to be free from unreasonable searches and seizures in schools. With those two cases, the Court has established a special test for schoolchildren, far more permissive than that applied to those suspected of serious criminal wrongdoing. Two cases in thirty-five years are not enough to regulate the lower courts’ oversight of literally millions of searches and seizures conducted in schoolhouses throughout the nation every year—a lack of oversight that lower courts have exploited to permit schools extraordinary discretion over schoolchildren and approve highly invasive searches. The existing literature focuses almost exclusively on the Supreme Court’s minimalist jurisprudence; in contrast, this Article uses a combination of methodological approaches to show how the law of searches and seizures in schools operates on the ground by conducting an in-depth case study of one jurisdiction, Illinois. We examine every case decided in Illinois and show that lower courts exploit the porousness of the Supreme Court’s test to permit questionable and sometimes even clearly illegal state actions. Yet even a comprehensive study of lower courts fails to fully grasp the extent of the problem: a minuscule proportion of the intrusions on schoolchildren by the state ever become cases—most internal school procedures are never independently reviewed at all, even if they involve unconstitutional intrusions. To understand how common searches and seizures of schoolchildren are and how often they cross the line into unconstitutionality, we draw on testimony from interviews with experts in the field. These interviews reveal that schools discriminate among students based on factors such as race, disability, homelessness, wealth, and community characteristics; and schools target some students for searches that can result in exclusion from school for shockingly long periods. Multiple interviewees independently described the system as treating some schoolchildren as disposable. The judiciary is failing to provide basic protections to our children, and Supreme Court intervention is imperative
The Income Tax Map: A Bird’s-Eye View of Federal Income Taxation for Law Students
Full text linkhttps://scholarship.law.uci.edu/celebration_of_books_2022-2023_book-covers/1002/thumbnail.jp
The Globalization of Legal Education: A Critical Perspective
Full text linkhttps://scholarship.law.uci.edu/celebration_of_books_2022-2023_book-covers/1017/thumbnail.jp
Intellectual Property, Independent Creation, and the Lockean Commons
Full text linkCopyrights and patents are differently structured intellectual property rights in different kinds of entities. Nonetheless, they are widely regarded by U.S. scholars as having the same theoretical underpinnings. Though scholars have sought to connect philosophical theories of property to intellectual property, with a particular interest in the labor theory of John Locke, these explorations have not sufficiently probed copyrights’ and patents’ doctrinal differences or their philosophical implications for the theories explored. This Article argues that a defining difference between copyrights and patents has normative significance for the framework of Lockean property theory: namely, that copyright law treats independent creation as a complete defense to claims of infringement while patent law does not. This distinction entails that the two legal systems differ in their effects on the “intellectual commons,” or what exactly they give to rights-holders and take away from the rest of the world. It also entails that Seana Shiffrin’s seminal challenge to Lockean theories of intellectual property—arguably the most significant philosophical exploration of intellectual property so far, but which fails to distinguish between these two areas of law—is a success as to patents but not as to copyrights. Disentangling this and other distinctions in copyrights and patents within the Lockean framework, as well as between tangible and intellectual property generally, this Article outlines a number of possible implications for intellectual property doctrine. Specifically, it identifies revisionary implications for copyright required by the Lockean framework in order to better protect the intellectual commons, as well as for the copyright/patent division of labor if the two legal systems have distinct theoretical grounds. The Article thereby uses the Lockean framework to call attention to intellectual property’s underexplored philosophical complexity, as well as its doctrinal stakes, so that we begin considering it more carefully than it has yet been
George Floyd at the UN: Whiteness, International Law, and Police Violence
Full text linkThis article applies discursive analysis of the UN Human Rights Council debate after the killing of George Floyd in June 2020. It assesses state members’ speeches delivered during the UN session convened in June 2020, as well as the ensuing landmark report by the UN Human Commissioner for Human Rights on police violence and racism released one year later, in June 2021. Through its analysis of the current global debate on police violence against black people at the United Nations, it shows how racialized violence is and is not considered in international law. The underlying task is to unmask whiteness-coping mechanisms used in international law when issues of racism arise, as well as to light fire on the disruptive nature of black movements’ engagement with the UN to dismantle racism in a structural manner. This article is particularly interested in international law as legal imaginations shared, colliding, and contested in multiple fora, among them the United Nations. Using this case study of the debate on racism and police violence at the United Nations in 2020, the article examines how different views of racism and international human rights law come into play on the global stage of the United Nations. It thereby highlights what those differing views reveal about international law in relation to racism
It’s Complicated: Advocating for Uniformity in the Enforcement of Surrogacy Contracts
Full text linkThe current landscape of surrogacy laws in the United States is uneven and broken in many places. Some states go so far as to criminalize surrogacy, and other states do not have any surrogacy laws on the books whatsoever. The lack of legal support for surrogacy arrangements, and for gestational surrogacy contracts in particular, infringes upon the reproductive autonomy of intended parents and surrogates alike. This Note argues that gestational surrogacy contracts should be enforced across the United States and looks to Article 8 of the Uniform Parentage Act of 2017 as a stepping-stone toward uniform, nationwide enforcement
05. School of Law Talking Points
No full textThe Founders of the Law School worked closely together with Executive Vice Chancellor Michael Gottfredson in drafting numerous proposals for a School of Law at the University of California, Irvine. In this document dated August 15, 2001 which appears to be from Executive Vice Chancellor Michael Gottfredson\u27s office, these early pioneers enumerate five reasons to create UCI Law