UC Irvine Law Review

Corporations, law firms, and investment banks all state that diversity matters. This Article shows that there is a chasm between discourse and action. For the most important decisions undertaken by companies—large merger and acquisition (M&A) transactions—a gender gap persists. This Article provides a holistic examination of the network of lead actors involved in M&A, revealing that women’s leadership opportunities continue to be vastly unequal. Using hand-collected data from 700 transactions, this Article reveals that thirty years after women began to account for almost half of all law students, gender parity in M&A leadership lags far behind. To illustrate, over a seven-year period, women make up on average 10.5% of lead legal advisors for buyers in large M&A deals. Moreover, this Article documents the lack of transparency on leadership data for other players in M&A. This Article argues that understanding, documenting, and disclosing the gender gap in M&A leadership is critical for increasing accountability and for determining the solutions that may work to reduce such disparities.

A safe and effective COVID-19 vaccine is the holy grail of our generation, necessary to resurrect our societies, save millions of lives, and protect our economies from collapse. Patent protection is the primary legal mechanism for ensuring timely development of such a vaccine. The patent system is designed to create the necessary incentives for private parties to invest in developing the vaccine, knowing they will enjoy the fruits of their success. Indeed, patent protection is necessary to promote human knowledge generally as well as a quick, safe, and effective COVID-19 vaccine.

Yet in reality, patent law may be obstructing the very goal it is intended to achieve. Patent law grants exclusive rights to inventors, enabling them to charge supracompetitive prices, delaying the distribution and dissemination of emerging technologies. In the context of the COVID-19 vaccine, patent protection means that vaccines will be financially out of reach for many. This produces a paradoxical result: rather than promote technological advancement for the public good, patent protection impedes it. Since universal immunity is necessary in the fight against the pandemic, delays in vaccine distribution can be catastrophic, costing millions of lives and carrying devastating economic consequences.

This Article therefore proposes a novel, alternative patent regime, designed to overcome this paradox at the heart of patent law. We propose a mechanism that will eliminate the problem of overprotection of patent rights that exists under current patent law, while still providing sufficient incentive for inventors to invest in innovative efforts. Under our proposed regime, the developer of a new vaccine will be granted a patent protecting its invention, but this patent will expire once the patentee has recouped its investment, plus a handsome profit. This regime, which we term “recoupment patent,” ensures that inventors are rewarded appropriately—but not excessively—for their innovative efforts. The result is a structure that encourages innovation while minimizing the time it takes for life-saving inventions to reach the public domain. We compare the proposed regime with other suggestions for reforming the patent system, including compulsory licensing; government incentives such as grants, subsidies, and prizes; and altruistic initiatives such as private-public partnerships, patent pools, and patent pledges. We highlight the recoupment patent model’s advantages over these alternatives.

This Article argues that the current era of U.S. civil procedure is defined by its neoliberalism. The Supreme Court has over the past few decades reinterpreted the Federal Rules of Civil Procedure in ways that have made it more difficult for citizens to bring and maintain civil claims. The major decisions of this new era—in areas as diverse as summary judgment, pleading, class actions, and arbitration—exhibit neoliberal hallmarks. They display neoliberalism’s tendency to naturalize existing market arrangements, its focus on efficiency and obscuring questions of power, its reduction of citizens to consumers, and its attempt to analyze government through the lens of market-modeled concepts. As the Court’s procedural decisions make it increasingly difficult for citizens to bring claims enforcing regulatory law—including antitrust, antidiscrimination, consumer protection, and worker protection laws—the Court’s neoliberal orientation lurks in the background and helps to explain procedure’s modern progression. In order to fully appreciate, critique, and potentially move beyond the current era of U.S. civil procedure, it is important to understand the neoliberal logic that drives it, as well as the logics and values it obscures and sidelines.

Our 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.

Sexual harassment remains a pervasive problem in the workplace. Recent studies and empirical research reveal that this unlawful conduct continues to pervade all industries and sectors of the economy. The #MeToo movement has made great progress in raising awareness of this problem and in demonstrating the lengths that some employers will go to conceal a hostile work environment. The movement has further identified the lasting emotional toll workplace harassment can have on its victims.

The research in this area demonstrates that the short timeframe harassment victims have to bring a federal discrimination charge—180 or 300 days depending on the state—is wholly inadequate. The deception, misrepresentation, and sexual abuse encountered by many workplace harassment victims can make it impossible to file a timely charge. The pandemic has further highlighted the difficulties harassment victims can face in meeting this deadline through no fault of their own. This Article argues that the only practicable solution to this problem is a more robust application of the centuries-old doctrine of equitable tolling to pause the harassment time filing deadline where appropriate.

This Article identifies five equitable tolling guideposts that the courts should consider before dismissing a sexual harassment claim on the basis of an untimely charge—psychological harm, employer threats, fear, workplace deception, and public health. This Article discusses how each of these markers may impact the timeliness of a harassment claim and explains when the use of equitable tolling may be appropriate. Given the extensive research in this area, as well as our expanded understanding of the pervasiveness of sexual harassment in the workplace, employers should no longer be permitted to run out the clock on these claims through their own improper conduct.

What statutory methods does an appellate court use in reviewing decisions of an administrative agency? Further, in doing this review, are appellate judges more likely to use certain statutory methods when they expressly cite the Chevron two-step framework than if they do not? This Article explores the answers to these questions using an original database of over 200 statutory interpretation cases culled from more than 2,500 cases decided in appellate courts reviewing National Labor Relations Board (NLRB or the Board) adjudications from 1994 through 2020. In particular, the study examined the use of text, language canons, substantive canons, legislative history, precedent, policy, and practical considerations. It then compared how use of those methods varied depending on whether or not the appeals court expressly cited or applied Chevron.

Most notable was how appellate courts used precedent and policy in contrasting ways when ruling on Board statutory interpretation cases. While precedent was used more when courts reversed the Board’s pro-employee interpretation to reach an anti-employee outcome, courts referenced policy more to uphold Board rulings that were pro-employee in orientation. Both Democrat- and Republican-majority courts exhibited different tendencies in their choice of methods as well. When ruling on anti-employee interpretations, Democrat-majority courts often cited and relied on text more than Republican-majority courts. In addition, Republican-majority courts disproportionately used substantive canons to uphold anti-employee interpretations while Democrat-majority courts favored language canons when reversing such appeals.

The study also yielded interesting observations about Chevron deference. Courts citing and applying Chevron had much higher agency-win rates than when Chevron was not used. Courts overwhelmingly cited Chevron or employed a Chevron-like “reasonableness” standard more when they upheld the agency’s statutory interpretation than when they reversed the agency, thus suggesting that courts may use Chevron to cabin judges’ ideological proclivities. The study also revealed a divergence in statutory methods depending on how a court employed Chevron. Courts expressly citing the Chevron two-step framework cited and relied on the statutory text and employed language canons more in the writing of the opinion than when they did not specifically cite Chevron. In addition, Republican-majority courts upholding Board interpretations often employed substantive canons more when citing Chevron than when not. Chevron-citing courts also disproportionately invoked policy considerations compared to non-Chevron-citing courts when upholding the Board’s interpretation. Courts declining to cite or apply Chevron at all had different tendencies. Those that declined to cite Chevron, or employ even a similar Chevron-like “reasonableness” standard, were more likely to cite precedent. Substantive canons were also employed to reverse the Board’s interpretation more by courts that declined to apply Chevron than courts that applied Chevron or a Chevron-like reasonableness standard.

Although the study is limited to one area of law and to the workings of a single agency—and one of the most politically charged agencies at that—it offers fresh insight into how empirical analysis can be used to look beyond the black box of federal court statutory interpretation and Chevron deference to see what shapes judicial opinions in their review of agency statutory interpretations.

Throughout American history, animals have been used by those in power to harm and terrorize Black Americans. While state-sanctioned use of slave-patrol and police dogs have been a commonly discussed issue, there has been little to no analysis on the harms Black Americans have faced from the systemic deprivation of animal companionship and husbandry. Racism and capitalism in America have resulted in a confusing labyrinth of private actors, animal organizations, corporate industries, courts, and legislators who have worked collectively to cut off opportunities for Black Americans to benefit from animal companionship and husbandry.

In Part I, this Note discusses the vital benefits that humans have derived from animal companionship and husbandry. Part II presents an overview of the multitude of ways Black Americans have been systematically deprived of the benefits of animal companionship and husbandry. Part III provides examples of potential changes that could be made to create new animal-related opportunities for Black Americans. Due to the breadth of this topic, it is my intention that this Note will inspire further research and discussion on the role of animals in upholding structures of violence and inequality, the overlooked significance of animals in uplifting marginalized people, and the ways that the dominant culture has imposed its attitudes toward animals on society to the detriment of minority cultures.

A primary goal of the juvenile-dependency system is the preservation of the family, yet this goal is undermined by the gross disparity in bargaining power that exists between parties and that disproportionately affects poor families of color. This Note argues that the systemic power imbalance within the dependency system that disadvantages parents and is exacerbated by racial and class bias can be ameliorated by incorporating objective criteria into proceedings, moving from an adversarial to problem-solving approach in negotiations, requiring cultural competency that acknowledges disproportionality and its sources, and expanding access to mediation. This Note proceeds in five parts. Part I provides an overview of the juvenile-dependency system. Part II discusses racial and class disparities in juvenile dependency. Part III describes negotiations in juvenile dependency, particularly the parties involved, the way information is gathered and shared, and how race and class impact negotiations. Part IV offers a series of case studies, which are incorporated into Part V to illustrate proposed reforms.