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Berkeley Law advances the University of California’s teaching, research and service mission as follows:

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Berkeley Law

There are 539 publications in this collection, published between 1982 and 2023.
Boalt Working Papers in Public Law (138)

Judges as Tort Law Un-makers: Recent California Experience with "New" Torts

Part of the DePaul Law School's 1999 Clifford Symposium, this article explores the role of "judges as lawmakers" by examining the tort law decisions of the California Supreme Court for the past 15 years -- the final three years that Chief Justice Rose Bird sat on the court and the twelve years after she was removed from office. The article presents the sea change in tort law thinking, doctrine and results that have taken place over this period of time -- essentially through the abandonment of notions of enterprise liability (Calabresi thinking about cheaper cost avoiders and cheaper loss spreaders). One theme of the article is that whereas the Bird court made new law (in some cases creating what might be termed "new" torts), the new court has "unmade" that law by its change of direction and outright overruling of existing doctrine. A counter-theme is that it was the Bird court that "unmade" tort law (by moving the law from clearer doctrine that was to be decided by judges to vague legal standards to be decided by juries), and it is actually the new court that is "making" tort law (by adopting new rules, or re-introducing old rules, that take decisions away from juries and give them to judges).

The Difference Uniforms Make: Understanding the Regulation of Collective Violence in Criminal Law and the Law of War

This paper treats the question in political theory and international law of whether non-uniformed fighters ought to enjoy combatant privileges. It does so by exploring our treatment of collective violence, and of citizen responsibility for state action. Consider two forms of involvement in collective violence. On the criminal law model, an individual can be punished for violent acts committed only by confederates, so long as he was part of a joint criminal enterprise. On the law of war model, by contrast, an individual cannot be punished for killings and violence committed on the battlefield (subject to certain humanitarian restrictions), so long as the killings are committed as part of international hostilities, and independent of the legitimacy of the case for war. Reconciling these two models means probing the logic of participation in both violence and politics.

I argue for extending combatant privileges to some non-uniformed combatants who are pursuing what can be termed "political" objectives, provided they observe other humanitarian constraints, roughly along the lines of Article 44 of the First Protocol to the Geneva Conventions. The reasoning that exculpates the regular soldier naturally extends to the non-uniformed combatant as well. While instrumental considerations do bear on non-uniformed combatancy, I argue that the basic question of non-uniformed combatant privilege has to be answered from within a theory of shared citizen responsibility for war. A corollary of this argument is that there is (very limited) conceptual room for holding liable soldiers fighting unjust wars by otherwise legal means.

Share Repurchases and Managerial Opportunism

Public companies in the United States and elsewhere are increasingly using open market repurchases, rather than dividends, to distribute cash. This paper explains why managers' ability to use inside information to repurchase stock at a bargain price is likely to systematically transfer value from public investors. In addition, tying cash distributions to the gap between the stock price and its actual value is likely to distort managers' payout, disclosure, and investment decisions, further reducing shareholder returns. The paper also proposes requiring firms to publicly disclose in advance the repurchase orders transmitted to their brokers. Such a disclossure rule, the paper shows, would reduce the economic distortions associated with repurchases without undermining their protential benefits.

135 more worksshow all
Boalt Venture Capital Series (2)

Agency Costs of Venture Capitalist Control in Startups

Venture capitalists investing in U.S. startups typically receive preferred stock and extensive control rights. Various explanations for each of these arrangements have been offered. However, scholars have failed to notice that when combined these arrangements result in a highly unusual corporate governance structure: one in which preferred shareholders, not common shareholders, control the board and the firm. The purpose of this Article is threefold: (1) to highlight the unusual governance structure of these VC-backed startups; (2) to show that preferred shareholder control can give rise to potentially large agency costs, and (3) to suggest legal reforms that may help VCs and entrepreneurs reduce these agency costs and improve corporate governance in startups.

Deviations from Contractual Priority in the Sale of VC-Back Firms

The literature on venture capital contracting implicitly assumes that VCs' cash flow rights – including their liquidation preferences – are fully respected. Using a hand-collected dataset of Silicon Valley firms sold in 2003 and 2004, this paper is the first to document that common shareholders often receive payment before VCs' liquidation preferences are satisfied. We show these carveouts are larger when governance arrangements give common shareholders more power to impede the sale. Our study shows how VCs' control rights and cash flow rights interact to affect VCs' cash flow outcomes, and contributes to a better understanding of VC exits.

Center for Law, Energy & the Environment (49)

Addressing Institutional Vulnerabilities in California’s Drought Water Allocation, Part 2: Improving Water Rights Administration and Oversight for Future Droughts

In California, droughts are likely to become more frequent, longer, and more intense in the future, posing increasing challenges for water management, and raising the stakes for effective drought response. This project aims to help state water governance and decision-making structures adapt to the changing climatic reality. In a companion report in this volume, we analyzed the strategies the State Water Resources Control Board (Board) used for water rights administration and oversight during the last four major statewide droughts. Our findings suggest that more proactive planning and preparation, enabling reduced reliance on in-drought improvisation, would improve the Board’s future drought responses. This report builds on that retrospective analysis with specific recommendations.

Our vision is simple: During droughts, California’s limited water supplies should be allocated among different human and environmental water uses transparently, efficiently, and predictably, in accordance with the priorities that flow from state and federal law.

We suggest a structured means of implementing this vision that emphasizes proactive drought preparations. At the core is a contingency-based framework designed to support more timely and effective drought decision making. A suite of complementary actions aims to reduce uncertainty and lay the groundwork for improved water rights administration and oversight in future droughts. These actions include making key policy decisions that affect drought response in advance, strategically improving decision-related information, maximizing learning from droughts, prioritizing water rights enforcement between droughts, and capitalizing on the many synergies that exist between the Board’s drought and non-drought work to achieve better water management outcomes, greater clarity for water users, and more efficient use of state resources. We view these actions as crucial components of effective climate adaption for California and encourage the Board to begin implementing them now, so that it is better prepared to face the challenges the next drought brings.

The Past, Present, and Future of California’s Coastal Act: Overcoming Division to Comprehensively Manage the Coast

The coast is a California icon. It powers a robust economy, provides the home for vibrant communities, and draws visitors from across the planet to its beautiful beaches and sparkling waters. Recognizing the importance of this unique resource, California has long been a leader in coastal protection and management. In 2016 California celebrated the 40th anniversary of the Coastal Act. This landmark legislation was enacted in 1976 to enhance public access to the shoreline, protect coastal natural resources, and balance development and conservation. Over the intervening decades, the state’s coastal management program has evolved into a complex network overseen by the Coastal Commission and myriad local, state, federal, nongovernmental, and private partners. Though the road has not always been smooth, California’s coastal management has enjoyed many collaborative successes and provided a model for other coastal states and nations. Today, however, the California coast arguably faces the greatest challenges yet. From surging seas to a growing population, changing conditions stress the state’s coastal governance systems and raise questions about the best path forward. How will California protect its coast against stronger storms and rising tides? How can the state ensure and support access to its coastline, including for underserved communities? And how can the state most effectively work with local, federal, and nongovernment partners to efficiently address these complex challenges?

46 more worksshow all
Open Access Policy Deposits (328)

Patent conflicts

Patent policy is typically thought to be the product of the Patent and Trademark Office, the Court of Appeals for the Federal Circuit, and, in some instances, the Supreme Court. This simple topography, however, understates the extent to which outsiders can shape the patent regime. Indeed, a variety of administrative actors influence patent policy through the exercise of their regulatory authority and administrative power. This Article offers a novel description of the ways in which nonpatent agencies intervene into patent policy. In particular, it examines agency responses to conflicts between patent and other regulatory aims, uncovering a relative preference for complacency ("inaction") and resort to outside help ("indirect action") over regulation ("direct action"). This dynamic has the striking effect of shifting authority from nonpatent agencies to patent policymakers, thereby supplanting some regulatory designs with the patent regime's more general incentives. This Article thus offers agencies new options for facing patent conflict, including an oft-overlooked theory of regulatory authority for patent-related regulation. Such intervention and regulation by nonpatent agencies can give rise to a more efficient and context-sensitive regime that is better aligned with other regulatory goals.

325 more worksshow all