UCLA School of Law

This paper critiques Brook Gotberg’s recent proposal to reform preference law by creating a new safe harbor for preferences in chapter 11 while repealing certain existing preference defenses in chapter 7. The proper path of reform in this area would preserve preference recovery as a feature of chapter 11 reorganization law while raising the monetary limits on minimum recoveries, restricting financial contract safe harbors and bolstering ordinary trade creditor defenses across both chapter 11 and chapter 7.

Academics, reformers, and business leaders all yearn for a single, objective, easy-to-read measure of corporate performance that can be used to judge the quality of public corporation law and practice. This collective desire is so powerful that it has led many commentators to grab onto the first marginally plausible candidate: share price.

Contemporary economic and corporate theory (as well as recent business history) nevertheless warn us against unthinking acceptance of share price as a measure of corporate performance. This Essay offers a brief reminder of some of the many reasons why stock prices often fail to reflect true corporate performance, including the problem of private information; obstacles to effective arbitrage; investors' cognitive defects and biases; options theory and the problem of multiple residual claimants; and the problem of corporate spillover effects that erode diversified shareholders' returns. These considerations argue against assuming there is a tight connection between stock prices and underlying corporate wealth generation. A corporation or a corporate law system designed around the philosophy that anything that raises share price is good is likely to produce a firm that cooks its books; that avoids long-term projects that won't appeal to unsophisticated investors; that chases after investment fads and fancies; that tries to opportunistically exploit creditors, employees, and customers; and that pursues business strategies that harm its diversified shareholders' other investment interests.

The Essay concludes that, if we allow our desire for a universal performance measure to blind us to the fallibility of share price, we court costly error. The Essay examines three recent examples of just such erroneous triumphs of hope over experience: the rise and fall of the Revlon doctrine; the 1990s infatuation with options-based executive compensation; and academics' current preoccupation with event studies, regressions on Tobin's Q, and other forms of empirical scholarship that attempt to judge the quality of corporate law and practice according to changes in share price.

The Patient Protection and Affordable Care Act (ACA) effected numerous changes in the legal regime governing health care and health insurance. Among the ACA’s more controversial provisions is the so-called contraceptive mandate, which requires employer-provided health care insurance plans to provide coverage of all FDA approved contraceptive methods.

On March 25, 2014, the Supreme Court will hear oral argument in the Hobby Lobby and Conestoga Wood cases, in which the shareholders of two for-profit family-owned corporations argue that requiring them to comply with the contraception mandate violates the Religious Freedom Restoration Act. 

Forty-four law corporate law professors filed an amicus brief in these cases, arguing that the essence of a corporation is its “separateness” from its shareholders and that, on the facts of these cases, there is no reason to disregard the separateness between shareholders and the corporations they control. The Brief is replete with errors, overstated claims, or red herrings, and misdirection. 

Contrary to the Brief’s arguments, basic corporate law principles strongly support the position of Hobby Lobby and Conestoga Wood. In particular, the doctrine known as reverse veil piercing provides a clear and practical vehicle for disregarding the legal separateness of those corporations from their shareholders and thus granting those shareholders standing to assert their free exercise rights.

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.

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.

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 pursuits that can give individual prisoners a sense of purpose. Only then will people living behind bars be able to fully step away from the culture of the prison and reorient themselves in a healthy, pro-social, and productive direction.

Abstract: The International Criminal Court (ICC) is a legal institution embedded in international politics. Politics shaped the Rome Statute of the ICC, which is rooted in norms and rules of European lineage and security interests of party states. Politics constrains and influences the operation of the Court, which has adapted in response to oversight and governance of the Assembly of States Parties, and to political actions extrinsic to institutional rules. The ICC also has political effects in situation states. A brief history shows that application of Rome Statute triggers across state parties with different social conditions skewed geographic distribution of its investigations and prosecutions towards Africa, a structural bias that catalysed a legitimation crisis for the ICC. Subsequent exercises of expansive jurisdiction aimed at nationals of non-African, non-party states – including Israel and some of the world's great powers – have dampened African complaints and advanced the ICC agenda, but intensified non-legitimacy claims by powerful non-party states. To survive, Court organs must follow legal mandates, yet be responsive to pressing international political demands, continuously risking the legitimacy of the ICC as a legal institution and adverse political reactions by antagonised governments. Careful management of the tension between law and politics at the ICC may modestly reduce antagonism towards the Court, but that tension cannot be resolved, and confrontations over the ICC's legitimacy are certain to recur.