UCLA School of Law

What is work? Who is a worker? How does law and social policy shape our understandings of these terms? What is at stake when only wage workers are endowed with worker status? That limitation excludes unpaid caregiving and other forms of nonmarket production. Indeed, even within waged work, specific forms of employment take precedence, privileging industrial jobs associated with adult white men and marginalizing much agricultural, household, and other service work. How does this dual structure, both bounding and dividing labor markets, create precarious conditions for people of color, immigrants, women, and others who face exclusion from privileged forms of work, consignment to subordinated forms of work, and denial that their labors constitute work at all?

Racialized mass incarceration enables forms of economic exploitation that evade traditional worker protections despite being integrated into conventional labor markets. Such exploitation is legitimated by normalizing incarceration as the baseline against which these practices are judged. In contrast, conventional social policy imagines an “economy” separate from state violence, opposing “free labor” to “involuntary servitude.” The emergent “carceral baseline” recharacterizes labor practices as subjects of criminal justice policy, not economic regulation, especially in “alternatives to incarceration.” Examples of this baseline’s deployment are drawn from regulation of child support work programs, Thirteenth Amendment challenges to community service “working off” criminal legal debts, minimum wage claims by workers in diversion programs, and legislative proposals to exclude formerly incarcerated workers from labor protections. Implications include the need to integrate insights from theories of nonmarket work and of racial capitalism that challenge the dominance of markets as objects of description and critique in law and political economy analysis.

This is the written version of a keynote address delivered to the Southern California Law and Social Science (SOCLASS) Forum, “Elections, Law and Democracy” Conference, Whittier Law School, March 28, 2014. Using examples from ballot access cases, campaign finance cases, redistricting cases, and election administration/voter identification cases, the address makes two arguments: First, in the Supreme Court’s election law cases, talk about “facts” and “evidence” is the tail wagging the dog. The Court is imposing value judgments in these cases, but sometimes camouflaging them behind a search for evidence, or worse yet, asserting facts about the state of the evidence which are not borne out by the evidence. This is true for both liberal and conservative Justices. Second, the Court needs to take one of two paths to correct its approach. Either it needs to get serious about facts and evidence in these cases, a change which has the potential to profoundly change our laws about campaign finance, voter identification, gerrymandering, and ballot access. Or the Court needs to stop camouflaging its value judgments and admit that facts don’t matter and no amount of evidence will matter given the Justices ideological commitments. I strongly favor the first approach, but the second approach would be better than the status quo when it comes to transparency and intellectual honesty. After discussing these two points the paper turns to a final question: how should social scientists and law professors who value social science respond to the Court’s misuse and abuse of social science in the election law cases?

This contribution to the Washington University School of Law conference on the Rehnquist Court and the First Amendment addresses the Rehnquist Court's view of the role of the First Amendment in intellectual property cases. It argues that, while the Rehnquist Court was not eager to find a conflict between intellectual property laws and the First Amendment, there is reason to believe that it set the stage for greater First Amendment scrutiny of intellectual property protections. At the very least, the Court left that road open to future courts, which might be inclined to view intellectual property more skeptically.

Modern scholarship takes a decidedly negative view of trademark law. Commentators rail against doctrinal innovations like dilution and initial interest confusion. They clamor for clearer and broader defenses. And they plead for greater First Amendment scrutiny of various applications of trademark law. But beneath all of this criticism lies overwhelming agreement that consumer confusion is harmful. This easy acceptance of the harmfulness of confusion is a problem because it operates at too high a level of generality, ignoring important differences between types of relationships about which consumers might be confused. Failure to differentiate between these different relationships has enabled trademark owners to push the boundaries of trademark protection, as they have been able to characterize virtually every use of their marks in consumer confusion terms.

This Article begins the process of distinguishing types of confusion by focusing on the supposed harms to producers from confusion regarding the source of non-competing goods. More specifically, this Article evaluates the assumptions underlying arguments in favor of protection against non-competing uses in light of the growing marketing literature regarding brand extensions and brand alliances. It demonstrates that non-competitive uses of a mark are unlikely to impact negatively the mark owner’s reputation for quality. Consumers, it turns out, are quite adept at compartmentalizing their quality expectations. At the same time, the literature provides some empirical support for the claim that third-party uses of a mark may interfere with a mark owner’s ability to expand into new product lines in the future.

Citizen participation has been considered as a main channel for political legitimacy, but does this logic apply to a more technical legal context like the judiciary? This paper explores the relationship between perceived citizen participation in the form of jury and its subsequent impact on judicial support. We theorize jury as a mechanism to strengthen judicial support in two ways: it elevates the perceived procedural fairness in individual adjudications, and the popular participation aspect of it can legitimize the broader judicial system. Employing a mixed-methods approach that integrates fieldwork with a survey experiment, this study investigates how the jury-like system in China (the lay assessor system) has yielded popular support for the judiciary. Our findings reveal that lay participation in judicial decision-making not only improves perceptions of procedural fairness but also increases demand for lay participation. As a mechanism of due process, lay assessors can enhance fairness perceptions of case outcomes. Furthermore, voting as the defining feature of the jury system substantively augments the perceived judicial legitimacy. These results affirm our theoretical framework concerning the jury's role in garnering judicial support. The dual function of the jury, as both an instrument of due process and a facilitator of popular participation, demonstrates its potential to strengthen judicial support across various regime and legal system types.

In 2020, with the onset of the COVID-19 pandemic, China embarked on one of the largest expansions of administrative capacity in its modern history. Compared to its pre-COVID self, the current Chinese government can now track and manage individual activity with unprecedented precision and regularity. While some of these developments were emergency measures that were limited to the pandemic, many of them have become institutionally entrenched through generalized lawmaking and policymaking, permanently transforming the Chinese government’s relationship with its population. Most importantly, the Party-state delegated enormous administrative law enforcement and information collection powers to two levels of urban government—the “subdistrict,” and below it, the “neighborhood community”—that used to be institutionally marginalized.

This Article is the first systemic study of this paradigmatic transformation. Through a comprehensive analysis of central-level laws, regulations, and policies, paired with local case studies from major cities, it traces the institutional framework and political logic of Chinese administrative expansion. Its core argument is that the sudden onset of COVID-19 forced cohesive action onto a previously internally-conflicted political landscape. Chinese leaders had contemplated a significant expansion of urban local governance as early as 2012, when Xi Jinping first rose to power, but as recently as 2018-19, they still seemed torn about its potential to aggravate principal-agent problems within the Party-state. The arrival of the pandemic rapidly and definitively resolved this internal debate in favor of expansionism, producing the extraordinary informational and law-enforcement apparatus that now exists in close proximity to every urban resident.

The United States is facing an epidemic of gun violence and a youth mental health crisis, which has led to a rise in mass school shootings perpetrated by adolescents. As the country struggles with how to respond, politicians have largely turned to criminal legal action against individual perpetrators instead of gun control reforms and public health efforts. In cases involving children who commit these crimes, prosecutors are increasingly extending the criminal law’s reach beyond the direct perpetrator—the shooter—to their parents. Parental criminal liability is not new, but it is being pursued with more regularity and zeal as incidences of mass school shootings and other types of youth-related harm become more visible. Extending criminal culpability and punishment to parents may be a momentary salve, responding to the immediate need for justice in the wake of unspeakable tragedy, but it is contradicted by psychological science about parental attitudes, beliefs, and capacity to control their children’s behavior. It is also ill-equipped to address the root causes of adolescent violence. Placing liability for children’s intentional acts of violence on parents misunderstands their ability to appreciate the risk their child may pose and shifts the onus of responsibility for keeping the public, and especially schoolchildren, safe from state and institutional actors onto individual parents who lack the training, resources, and support to be effective stewards of public safety in the modern era.

This Article offers a three-part critique of parental criminal liability for the independent acts of their children, arguing that it is doctrinally problematic, normatively misguided, and empirically unsupported. It takes as its exemplar People v. Crumbley, where the parents of a Michigan school shooter were convicted of four counts of involuntary manslaughter for their son’s intentional criminal actions. Based on an in-depth analysis of the case, including briefing, court orders, witness testimony, and trial and sentencing transcripts, it argues that the Crumbley case sets a dangerous precedent and ignores psychological research and socio-cultural parenting norms in ways that upend principles of mens rea and causation. It is the first Article to engage the social psychology literature to analyze parental criminal liability based on the foreseeability of children’s criminal acts and argue that this doctrinal extension is misguided.

The psychological literature has found that parents are unlikely to correctly interpret signs of mental health issues in their children and, in the absence of overt displays of aggression, are unlikely to realize that their child may act violently or pose a risk to others. The Article analyzes this doctrinal mismatch and explains how it led to an improper finding of proximate causation in the Crumbley case that has the potential to exponentially expand parental liability going forward.  It argues that, to the extent parental criminal liability is pursued at all, it should be guided by psychological research on parent-child relationships, not just lay intuitions. But to effectively stem the tide of serious criminal misconduct by adolescents, including school shootings, emphasis should be placed on creating support networks and educating parents rather than outsourcing policing responsibilities to families and punishing them for the independent criminal acts of their children. Ultimately, recognizing the dilemma of parental care and control and removing the specter of the criminal law from parenting decisions will better serve the interests of families and the public.

Criminal law is typically seen as the domain of judges and prosecutors, yet police officers often act as de facto policymakers through their enforcement discretion. This paper explores the impact of police discretion on prostitution regulation in China, following a 2017 judicial interpretation that lowered the threshold for prosecuting pimps. Using novel datasets of over 110,000 administrative penalties and 3,300 criminal judgments related to prostitution, we find that heightened criminal liability for pimps has led to intensified police crackdowns in visible venues such as clubhouses, massage parlors, and karaoke bars. This enforcement shift was driven by police incentives to meet criminal investigation quotas, now facilitated by the eased criteria for accumulating evidence against pimps, which disproportionately affected prostitution in "visible" locations and pushed prostitution activities underground in the long run. Overall, these findings highlight the significance of grassroots police incentives in delivering policy objectives and shaping regulatory outcomes.