UC Irvine Law Review

Corporate groups dominate the American economy. Known publicly by a single name—Chevron, Apple, McDonald’s, or Google—these companies are a web of affiliated entities, each with its own separate legal identity. Yet, corporate laws have failed to develop a statutory scheme that acknowledges these relationships among entities. While corporate personhood, separateness, and the accompanying liability protection are the primary reasons for using the corporate form, or business entities in general, form can be exploited by bad actors who seek to take advantage of the natural legal silos that define each legal entity in a corporate group as a stand-alone person. These legal silos enable bad actors to hide in plain sight, or to give the perception of a full disclosure without consequence, making some of the most egregious conduct either fraud that is difficult to unravel or behavior that is disturbing but legal. This oversight leaves the system vulnerable to market manipulation through complex business structure. As a result, consumers and investors, many concerned with corporate social responsibility and impact investing, and motivated to do business with companies that support their social causes, can be manipulated into investing and spending by the silos and veils of separateness.

When individuals act in a way that defrauds the market or causes harm, criminal law, securities law, and even tort and contract law provide remedies. When companies manipulate the market across business sectors, the antitrust laws intervene. When an individual corporation manipulates the market or engages in fraud, shareholder derivative litigation in conjunction with securities regulation provide a remedy. What is missing is a solution for market manipulation using corporate groups and, in particular, the corporate family. A system is needed for acknowledging entities that work for a common good, as the current structure enables these entities to manipulate what is known to investors and consumers for purposes of altering stock price, either intentionally or incidentally. This approach is the first to distinguish corporate groups by merging substantive corporate law with procedural protocols.

This Article proposes a definition and governance regime for a particular type of corporate group—the corporate family. It defines the family as an enterprise formed by weaving corporations, partnerships, and LLCs together into a mix of public and private entities acting for the benefit of a parent corporation or for the personal gain of one or more leaders of the enterprise. A corporation should be treated like a family when (1) there is more than one entity with shared ownership or management, or when an entity is wholly owned by another entity, and (2) that entity operates for the promotion of the parent’s business purposes or the manager or owner’s business interests. When businesses meet the standard for corporate family treatment, they are required to acknowledge influence and look to the real party in interest when determining what is material, what should be reported to shareholders, and conflicts of interest. This proposed corporate family structure acknowledges influence, while maintaining principles of corporate personhood by taking a procedural approach to determining when an entity should be deemed a family. To disregard all groups and in particular families leaves a gap in the regulatory regime that is easy to manipulate and exploit. By acknowledging influence and treating applicable corporations as a family, the market can gain a clearer and more accurate picture of business operations.

More than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also have climbed. For example, in fiscal year 2020, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications that the agency adjudicated, compared with just 28.12% in fiscal year 2015. These developments came as former president Donald J. Trump proclaimed a deep commitment to end the “epidemic” of human trafficking and to protect “innocent” victims.

Though scholars have critiqued the general protection framework for immigrant victims of trafficking, this Article unearths an understudied problem: the often-unseen role of the “shallow state.” In contrast to the much-discussed “deep state” of career bureaucrats, this Article suggests that low-level administrative actors adjudicating humanitarian immigration cases have subtly worked to undermine protections for immigrant victims of trafficking. This Article demonstrates how administrative actors through a range of tactics, including delay, rejection, and heightened stakes, have contorted the T visa application process to make it more difficult for immigrant victims to navigate. The Article explores how these actions—often diffuse and obscured—have been hard to identify and subject to judicial review. It warns that these bureaucratic tendencies have resulted in declining approval rates with the potential to erode protections for immigrant victims of trafficking for years to come. It, thus, prescribes not only greater attention to such practices but also administrative and judicial remedies.

The global rollout of COVID-19 vaccines is underway, and with it the inevitable occurrence of severe side effects that accompany, rarely, even the safest and most effective vaccines. Governments have invested billions of dollars in supporting research, development, logistics, and supply chains, as well as supporting the creation of networks of healthcare providers to deliver vaccines to recipients all over the world. The European Commission and several international organizations have established the COVAX Facility to pool resources in promising vaccine candidates and to subsidize their procurement by low- and middle-income countries. Yet up-front investment in vaccine development and delivery solves only half the problem with respect to vaccine access. Risks of legal liabilities, particularly product liability for severe side effects, will serve as an important, if not decisive, factor in how vaccine manufacturers participate in the response with Emergency Use Authorized and recently-licensed COVID-19 vaccines. If manufacturers do not receive sufficient assurance against legal liability, especially product liability, they will not ship vaccines. There is limited experience with developing coronavirus vaccines, and severe side effects following immunization are inevitable, as evidenced from Phase III trials and strongly suggested by early administration of Emergency Use Authorized vaccines. Therefore, there is a critical need to balance the risk calculations of manufacturers with justice for immunization recipients who become seriously ill or die in order to contribute to herd immunity in the community. This Article outlines the components of a global no-fault liability, indemnification, and compensation system that includes leveraging current no-fault systems in thirty-nine countries, a World Health Organization insurance mechanism, and a combination of insurance and compensation fund construction based on claims-processing precedents from the Deepwater Horizon Oil Spill and Boeing 737 Max crashes—both of which had tens of thousands of claims originating from dozens of countries and processed in at least six languages. The proposed system will be essential for vaccine manufacturer response and to address vaccine hesitancy and injury in populations across the globe.

Place-based tax incentives, such as the New Markets Tax Credit (NMTC) and Opportunity Zones incentives, are often used to promote investment in low-income neighborhoods. However, not all low-income neighborhoods have an equal need for investment subsidies. Subsidies for investment in already gentrifying neighborhoods, for example, may reflect inefficient inframarginal investment, and they may lead to inequitable outcomes. Critics fear that when gentrifying neighborhoods are eligible for tax incentives, they will draw investment away from the neighborhoods that need it most. However, few studies have provided empirical analysis to assess whether these concerns have merit. Through a novel geospatial analysis of the location patterns of tax-subsidized projects, this Article provides new evidence that critics’ concerns are justified.

This Article analyzes fifteen years of NMTC data to explore the location patterns of tax-subsidized projects in twenty U.S. cities. It employs two spatial analysis methods, quadrat density analysis and negative binomial regression analysis, to describe the location patterns of NMTC projects and their relationship to two variables known to correlate with gentrification: high vacancy rates and increasing rental rates. The quadrat density analysis reveals that, in most cities, NMTC project density is highest in eligible census tracts that had high vacancy rates, increasing rents, or both. The results of the negative binomial regression analysis confirmed that, in many cities, high vacancy rates or rent increases were statistically significant predictors of NMTC investment. Together, these results provide new evidence that gentrifying census tracts may draw tax-subsidized investment away from other eligible areas. They also suggest that a commonly proposed Opportunity Zones reform—to add statutory safeguards modeled after those in the NMTC—would fail to prevent tax-subsidized investment in places that are already gentrifying.

The observed spatial patterns reflect inefficient allocations, limit the NMTC program’s ability to promote equitable change, and cast doubt about whether federal regulators can effectively shape program outcomes. Opportunity Zones are likely to have similarly inefficient and inequitable outcomes. Therefore, this Article argues that statutory and administrative reforms are necessary to reduce the frequency at which tax incentives are used to subsidize investment in neighborhoods that are already gentrifying. This study has profound implications for the five-billion-dollar-per-year federal NMTC program, the $3.5 billion per year federal Opportunity Zones program, and state-level tax incentives modeled after these federal tax laws.

Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. As we explained in Upjohn, if the purpose of the privilege is to be served, the participants in the confidential conversation “must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.”

[W]e reject respondents’ contentions that anybody who requests damages for pain and suffering has waived the psychiatric privilege because the psychiatric records might conceivably disprove the experiencing of the pain and suffering, that any claim of even . . . “garden variety” injury waives the psychotherapist-patient privilege, and that a plaintiff’s mental health is placed in issue whenever the plaintiff’s claim for unspecified damages may include[] some sort of mental injury.

We often think of DNA as a unique personal identifier. Yet, as of 2019, direct-to-consumer (DTC) genetic testing companies have amassed the genetic data of more than twenty-six million consumers. This raises the concern that companies do not uniformly protect consumers’ genetic privacy. Substantiating such concerns are complaints that companies permit law enforcement access to their databases, sell consumer genetic information to third parties, pursue drug development, and suffer data breaches.

Regulators have been slow to respond to this emerging privacy issue. The current legal framework is largely inadequate: there is no federal data-privacy law; courts and agencies are ill-equipped or lack directive to tackle a privacy issue of this magnitude; and current genetic-related laws focus on notice, informed consent, and antidiscrimination. However, recently enacted state data-privacy laws like the California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA) may serve as a legal framework to address privacy in the DTC genetic testing context.

Under the CCPA and CPRA, the right to delete promises to give control back to consumers over their genetic information. However, further genetic-specific regulations under the CCPA and CPRA, or a separate genetic-privacy statute, are needed to protect privacy in the DTC genetic testing context while balancing against legitimate business and governmental interests. This Note attempts to delineate how such a balance can be achieved.

“The rich man’s dog gets more in the way of vaccination, medicine and medical care than do the workers upon whom the rich man’s wealth is built."

Poor health outcomes are linked to long-standing wealth disparities for people of color in the United States. Wealth inequality has gotten worse over the past decades, despite attempts to improve it. The 2017 Opportunity Zone (OZ) tax program is the federal government’s most recent economic-development intervention. The OZ program provides for low-income census tracts in each state to be designated as “Opportunity Zones” and offers tax benefits for people who make investments in certain types of businesses and properties in OZs. Notwithstanding the bipartisan popularity of the OZ program, this Note reveals why it is largely symbolic and will fall short of its policy goals. Specifically, this Note argues that the OZ program will not increase the income or wealth of OZ community members. In addition to describing the flaws of the program, this Note explains why it should be replaced with economic-development policy that makes direct cash payments to low-income community members. The disparate infection and death rates of COVID-19 on communities of color demonstrate the need for substantive, rather than symbolic, federal economic-development interventions.