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.

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.

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?

Artificial intelligence and the human mind share a decisionmaking architecture, and antidiscrimination law is built for neither. In both, a producing layer encodes the statistical regularities of an unequal world and shapes the inputs a decision runs on, while an avowing layer deliberates, explains, and sincerely denies discriminatory intent — without being able to observe the processing beneath it. We name this the architecture of disclaim, and we show it is functionally isomorphic across silicon and carbon. Recent computer-science studies of large language models are echoing, sometimes measure for measure, a half-century of implicit bias research on human brains. The parallels are not cosmetic. Models and brains exhibit similar bias effects, with similar resistance to correction. Alignment training and diversity training fail in the same way and for the same reason: each updates what a system says without retraining what it computes. Asked whether it discriminated, either system answers confidently — and the answer is sincere and wrong.The architecture defeats the law's existing toolkit, cluster by cluster. Consciousness (purposeful discrimination) fails because the avowing layer answers honestly. Cause (but-for causation) fails because race travels in a bundle of proxies that no counterfactual can isolate, so the test can convict but never acquit. Consequence (disparate impact) comes closest — it never asks about anyone's interior — but it arrives statutorily confined, constitutionally imperiled, and missing an accepted account of why its disparities matter.A fourth cluster survives. Conduct asks not what the actor intended, observed, or can counterfactually prove, but what it should have done. Two legal traditions are building toward it right now, neither aware of the other. AI governance has converged on assessment, audit, and reasonable response; implicit bias law has replaced Batson's futile hunt for purposeful intent with an epistemically upgraded objective observer. Two construction crews are working with one blueprint. The convergence is not coincidence — it is the signature of the same architecture asserting itself across different substrates — and naming it makes an exchange possible, because each side holds what the other is missing. AI governance holds ex ante duties that attach before any contested decision. Implicit bias law holds the epistemic content without which a reasonableness benchmark is an empty vessel.The exchange composes a new standard: the responsible person — an actor charged with what the science of decisional systems has established, bound by ex ante duties before the decision, and judged on that same knowledge after it. Because the standard interrogates no interior and demands no counterfactual, it reaches the firm whose managers consult a frontier model persistently, informally, and mid-discretion — which is what every firm may be becoming, and what every substrate-specific regime misses. What to do? Judges can begin through evidentiary rulings alone. Legislators can finish, enacting ex ante obligations calibrated to what minds and machines can and cannot do. Two decades ago, one of us asked why we tolerate from our organically grown black boxes what we would never tolerate from synthetic ones. We shouldn’t. The architecture of disclaim means that neither minds nor machines can simply avow their way to fairness — but the law can now hold both to becoming what they claim to be.

Law is a weak tool for environmental protection in China. Nonetheless, citizens and lawyers are using the law in a variety of creative ways to press for compensation, cessation of environmental harms, and restoration of environmental degradation. This conference article examines the benefits and shortcomings of legal approaches to environmental protection in China.

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.

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.