Latest Scholarship

May 19, 2017

Guest Blogging on Concurring Opinions about Whiteness, Class, Rurality

I've been guest blogging for the past few weeks over at Concurring Opinions and invite you over to that blog, on "the law, the universe, and everything" to see what I've been writing.  I've done a four-installment review/commentary on J.D. Vance's Hillbilly Elegy:  A Memoir of a Family and Culture in Crisis.  Spoiler Alert:  I'm not a big fan but, in the end, suggest that the book can help law profs better understand the low-income white students who (thankfully, yes, thankfully!) show up in our classrooms from time to time.  My posts are:

On Donald Trump, J.D. Vance, and the White Working Class

Hillbilly Elegy as Rorschach Test

The "Shock and Awe" Response to Hillbilly Elegy:  Pondering the Role of Race

On Ree Dolly, J.D. Vance and Empathy for Low-Income Whites (or, What Hillbilly Elegy is Good for)

I've also done a bit of writing about rurality, with these posts:

Rurality and Government Retreat

Local Journalism as Antidote to Echo Chambers and Fake News

Also related to rurality are these posts about spatiality and abortion access. 

Did You Hear the One About the Alaska Legislator Who Said ... 

Sanger's Tour de Force on Abortion (with a Blind Spot for Geography)

Carol Sanger of Columbia Law responded to my post about her new book, About Abortion:  Terminating Pregnancy in the 21st Century, here.  I love the fact she says I get the "last word" in our exchange over the significance of geography.

I expect to post another item or two before my term as a guest blogger expires in about a week. 

January 27, 2017

Law Review Online Launches

The UC Davis Law Review is celebrating its fiftieth volume by launching an online companion edition: the UC Davis Law Review Online. The online journal will print short, timely pieces—including essays, responses, replies, and book reviews—at lawreview.law.ucdavis.edu/online.

Dean Kevin R. Johnson welcomed the online journal, remarking, “The UC Davis Law Review has a proud history of excellent scholarship and has always evolved with the times.” Dean Johnson detailed that history in the online edition’s very first piece, “Foreword: 50 Volumes of the UC Davis Law Review.”

"We are hoping that the UC Davis Law Review Online will be able to grow into a robust and active forum for engaging legal scholarship above and beyond the articles in our traditional print edition,” says Volume 50 Editor in Chief Lars Torleif Reed. For example, Dean Steven W. Bender from Seattle University School of Law spoke at the Law Review’s 2016 Symposium, Disjointed Regulation: State Efforts to Legalize Marijuana, and published his article “The Colors of Cannabis: Race and Marijuana” in the December 2016 print issue. The new online edition allowed him to reflect on the implications of the 2016 elections in a follow-up piece. It will also allow scholars to respond to pieces in both the print and online journals without the time delay of print publishing.

The Law Review launched its online edition along with its completely redesigned website, lawreview.law.ucdavis.edu. Reed, Projects Editors Parnian Vafaeenia and Andrew Aaronian, and Managing Editor Markie Jorgensen developed the online journal and website along with the School of Law’s Senior Graphic Designer Sam Sellers and Web Application Developer Jason Aller. The editors and members of the UC Davis Law Review will staff both the print and online editions.

Authors who wish to publish in the UC Davis Law Review Online should submit through Scholastica or by emailing lawreview@law.ucdavis.edu. (Scholastica is strongly preferred.)

 

January 10, 2017

The strangest thing happened at the AALS last week

I have attended the Association of American Law Schools annual meeting for many of the 17+ years I have been a law professor, but I experienced something at last week's annual conference in San Francisco that I had never before seen or heard, something that came as a pleasant surprise.   Attendees were actually talking about rural people and places--including in a plenary session on the future of the legal profession.

For more than a decade now, I have worked to establish as a sub-discipline what I call "law and rural livelihoods" (I've taught a seminar by that name for eight years), and my Legal Ruralism blog is part of that effort.  One of my overarching arguments is that most legal scholarship implicitly embraces an urban norm--and that some legal scholarship is explicitly urbanormative.  Yet in all my years of attending gatherings of law professors, I have consistently been the only person in the room talking about rural people and places--I've literally been the only person using the word "rural."  I've often joked that I'm the "rural lady," perhaps analogous to SNL's "church lady," a character with a one-track mind who keeps showing up and making the same overarching point. Over the years, this approach has attracted a lot of eye-rolling, ongoing marginalization.  But it has remained the case that rural people and places have been omitted from so many scholarly conversations about law--and from so many scholarly works on topics that, to my mind, have an obvious rural or spatial angle, e.g., reproductive justice, poverty.

So, imagine my surprise when, following the plenary on "Preparing a Diverse Profession to Serve a Diverse World," with key note by Brad Smith, President and Chief Legal Officer of Microsoft Corporation (and, incidentally, my boss at Covington & Burling London in 1992 and later my client, from 1996-98, when I returned to Covington and he was in house at Microsoft),  Lauren Robel of Indiana University School of Law asked the first question, which was essentially "what about rural?"  She noted that she had recently been in southern Indiana, which is quite rural, and that shortages of broadband and lawyers are two challenges plaguing the region.  She also referenced the recent NPR story about the "epic" shortage of rural lawyers, a story that quoted me and mentioned the work I have done on the rural lawyer shortage.  After Robel broke the ice with a reference to rural Indiana, several others referenced "rural" in the ensuing conversation.  This was interesting in part because Smith had, early in his talk, referenced a small town in southwest Virginia where Microsoft has a server farm, but he had not used the word "rural."  As the conversation unfolded, however, the word became part of the discussion in a way that seemed, well, natural.

This was somewhat similar to what had happened the day before in a discussion session in which I participated:   Community Development Law and Economic Justice--Why Law Matters.  About a dozen scholars were invited in advance to participate in this discussion, including me.  Because I don't "do" community development law or work as such, I assumed I was invited to participate because of my work on rurality, including rural poverty, thus implicating issues of economic justice.  Once I got the ball rolling by talking about my rural-focused scholarship, several other participants mentioned "rural," including "rural and urban," as in referencing the prospect of intra-regional CED collaborations and such.  (Let me be clear that this usually doesn't happen; when I'm on a panel talkig about "rural," I typically remain silo-ed as such).  I commented that I thought much of the attention to "rural and urban" was racially coded (though it is not necessarily accurate to conflate rurality with whiteness, it is a common phenomenon), as a way to get at cross-racial collaborations, which I very much support (indeed, cross-racial cooperation among low-income folks is a big focus of my scholarship right now).  I also joked that I had not heard as many mentions of "rural" in my entire 17 years of attending law prof. conferences as I had in that 1.75 hour-long session!  Perhaps colleagues in this session--where I was invited to the conversation because I am a ruralist--were humoring me. 

So, is this attention to rurality among legal educators the wave of the future?  or just a temporary dalliance, a moment of intrigue and curiosity, as we absorb the results of the 2016 election and the role that rural America apparently played in Trump's win?  I'm hoping for the former because mainstream (even liberal! highly educated! elite!) attention to rural issues and rural people might help us avert another electoral disaster in two years, or four.  

Cross-posted to Legal Ruralism.

January 3, 2017

UC Davis School of Law Faculty at AALS 2017

Faculty from UC Davis School of Law will have a prominent presence at the 2017 Association of American Law Schools (AALS) Annual Meeting in San Francisco this week.

Here is a list of King Hall-related faculty activities.

UC Davis School of Law Reception for Faculty, Staff, Alumni, and Friends

Thursday, January 5
6 pm - 8 pm
Powell Room, 6th Floor, Hilton

***

Programs with King Hall Speakers

**Wednesday, January 4**

Lisa Ikemoto
10:30 am - 12:15 pm
AALS ARC OF CAREER PROGRAM - Branching Out in Your Post-Tenure Career
Imperial B, Ballroom Level, Hilton

Lisa Pruitt
10:30 am - 12:15 pm
AALS DISCUSSION GROUP - Community Development Law and Economic Justice: Why Law Matters
Golden Gate 2, Lobby Level, Hilton

Chris Elmendorf
10:30 am - 12:15 pm
SECTION ON LAW AND THE SOCIAL SCIENCES - How Can Social Science Improve Judicial Decisionmaking?
Continental Parlor 2, Ballroom Level, Hilton

Alan Brownstein
1:30 pm  - 4:30pm
SECTION ON LAW AND RELIGION - Is Securalism a Non-Negotiable Aspect of Liberal Constitutionalism?
Continental Parlor 9, Ballroom Level, Hilton

Angela P. Harris
1:30 pm - 3:15 pm
POVERTY LAW, CO-SPONSORED BY SECTION ON LAW, MEDICINE AND HEALTH CARE - Food Justice as Interracial Justice
Continental Ballroom 5, Ballroom Level, Hilton

Aaron Tang
3:30 pm - 4:45 pm
SECTION ON LEGISLATION AND LAW OF THE POLITICAL PROCESS - New Voices in Legislation Works in Progress
Golden Gate 8, Lobby Level, Hilton

Kevin R. Johnson
6:30 pm               
Honored Guest at the Latino/a Law Professor's Dinner
Perry's Restaurant Embarcadero, 155 Steuart Street (between Mission and Howard)

**Thursday, January 5**

Leticia Saucedo
8:30 am - 10:15 am
SECTION ON LABOR RELATIONS AND EMPLOYMENT LAW, CO-SPONSORED BY IMMIGRATION LAW; BUSINESS ASSOCIATIONS; & CONTRACTS - Classifying Workers in the "Sharing" and "Gig" Economy
Golden Gate 4, Lobby Level, Hilton

Lisa Pruitt
8:30 am - 10:15 am
SECTION ON WOMEN IN LEGAL EDUCATION, CO-SPONSORED BY MINORITY GROUPS; & BALANCE IN LEGAL EDUCATION - Cultivating Empathy
Continental Ballroom 5, Ballroom Level, Hilton

Kevin R. Johnson
1:30 pm - 2:00 pm (Keynote address)
AALS COMMITTEE ON RECRUITMENT AND RETENTION OF MINORITY LAW TEACHERS AND STUDENTS - Making Room for More: Theorizing Educational Diversity and Identifying Best Practices in the Age of Fisher
Golden Gate 2, Lobby Level, Hilton

**Friday, January 6**

Madhavi Sunder
8:30 am - 10:15 am
SECTION ON INTELLECTUAL PROPERTY - Intellectual Property in Conflict or Concert with Community Values
Golden Gate 6, Lobby Level, Hilton

Anupam Chander
8:30 am - 10:15 am
SECTION ON INTERNATIONAL LAW - Implementing the Trans-Pacific Partnership: Challenges and Opportunities on the Road Ahead
Golden Gate 8, Lobby Level, Hilton

David Horton
10:30 am - 12:15 pm
SECTION ON COMMERCIAL AND RELATED CONSUMER LAW & CONTRACTS JOINT PROGRAM - Contracts, Commercial, and Consumer Law in Action
Continental Parlor 1, Ballroom Level, Hilton

Courtney Joslin
1:30 pm - 3:15 pm
SECTION ON SEXUAL ORIENTATION AND GENDER IDENTITY ISSUES - Setting the Post-Obergefell Agenda
Golden Gate 8, Lobby Level, Hilton

Darien Shanske
1:30 - 3:15pm
SECTION ON TAXATION - Fiscal Federalism: Balancing Tax Policies at the Federal, State, and Local Levels
Continental Parlor 1, Ballroom Level, Hilton

Kevin R. Johnson
1:45-3PM
Pre-tenured Law School Teachers of Color - Small Group Discussion about Scholarship
Golden Gate 4 & 5, Lobby Level, Hilton

Kevin R. Johnson
3:15 pm - 4:15 pm
PLENARY SESSION - Pre-tenured Law School Teachers of Color (Part I - Service: Challenge, Opportunity, and Passion; Part II - Teaching and Outsider Status)
Golden Gate 4 & 5, Lobby Level, Hilton

A TOAST TO LESLEY McALLISTER
5pm - 8pm
Location: UC Hastings
Details and RSVP info: http://facultyblog.law.ucdavis.edu/post/a-festschrift-for-lesley-mcallister.aspx

***

Other Faculty Roles in AALS

- Rose Cuison Villazor, Chair, Section on Minority Groups; Chair-Elect, Section on Immigration Law
- Afra Asharipour, Executive Committee Member, Section on Transactional Law & Skills; Executive Committee Member, Section on Law and South Asian Studies
- Jasmine Harris, Executive Committee Member, Section on Evidence; Executive Committee Member, Section on Law and Mental Disability
- Carlton Larson, Executive Committee Member, Section on Legal History

***

Additional Attendees from King Hall

Thomas W. Joo
Peter Lee
Evelyn Lewis
Brian Soucek
Carter "Cappy" White  

 

November 4, 2016

Presenting a Paper on the Future of Legal Education

Earlier this week, I visited Loyola University Chicago law school and presented a paper to faculty and students on the future of legal education.

The paper, titled "Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis,'"was originally presented as part of the Mitchell Lecture series at Buffalo law school last spring. My paper, in a nutshell, contends that in this time of economic "crisis" for law schools, we should not forget the fact that much remains to be done (1) to improve faculty and student diversity (as well as the diversity of the legal profession); and (2) to ensure that law schools do all that they can do to ensure student wellness during and after law school.  In talking about these issues, I mention recent positive developments at UC Davis School of Law.

August 12, 2016

Deanship Conference: "Promoting Diversity in Law School Leadership"

Today I am speaking at a panel at the University of Washington. It's part of a deanship conference titled "Promoting Diversity in Law School Leadership."

Here's the event description: "UW School of Law with Seattle University School of Law & the Society of American Law Teachers (SALT) offer this biennial workshop to encourage and assist members of underrepresented groups to pursue deanships and other university and law school leadership positions."

I am proud that King Hall has a faculty that is both excellent and diverse. In fact, to my knowledge, we have the only majority-minority faculty among top-tier law schools. See my recent op-ed on the topic in The Chronicle of Higher Education.

May 6, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 2

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Governance and the Indian Private Equity Model" 
National Law School of India Review, Volume 27, Issue 1
UC Davis Legal Studies Research Paper No. 484

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

Private Equity (PE) firms have long invested in Western firms using a leveraged buyout (LBO) model, whereby they acquire a company that they can grow with the ultimate goal of either selling it to a strategic buyer or taking it public. Unable to undertake the traditional LBO model in India, PE investors in Indian firms have developed a new model. Under this Indian PE Model, PE firms typically acquire minority interests in controlled companies using a structure that is both hybridized from other Western investment models and customized for India's complex legal environment. As minority shareholders in controlled firms, PE investors in India have developed several strategies to address their governance concerns. In particular, PE investors in India have focused on solutions to address local problems through the use of agreements that govern (i) the structuring of minority investments, (ii) investor control rights, and (iii) exit strategies. Nevertheless, recent governance and regulatory difficulties highlight the continuing uncertainty surrounding the Indian PE model.

"National Data Governance in a Global Economy" 
Columbia School of International and Public Affairs Issues Brief, April 2016
UC Davis Legal Studies Research Paper No. 495

ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

Global data flows are the lifeblood of the global economy today and of the technologies of the future. Yet, the regulation of how data is to be handled remains largely the province of national laws. How we resolve the dilemmas of global flows within a nation-state structure will impact the digital economy, free expression, privacy, security, consumer protection, and taxation. Just as we once built an architecture for cross-border flow of goods, we need to build an architecture for cross-border flow of information.

"The Charming Betsy and the Paquete Habana" 
UC Davis Legal Studies Research Paper No. 485

WILLIAM S. DODGE, University of California, Davis - School of Law
Email: wsdodge@ucdavis.edu

This chapter for the book "Landmark Cases in Public International Law" discusses two famous U.S. Supreme Court decisions - The Charming Betsy (1804) and The Paquete Habana (1900). Although written nearly one hundred years apart, each decision appears to stand for similar propositions - that international law has an important place in the law of the United States, but that U.S. domestic law should prevail in the event of conflict. What often goes unnoticed is that the Supreme Court decided these cases against the backdrop of very different understandings about international law and its relationship to U.S. domestic law.

In addition to discussing the background and significance of each case, this chapter describes three shifts in U.S. thinking about customary international law during the nineteenth century. First, the theoretical foundations of customary international law shifted away from natural law towards positivism. Second, the consent requirement for making customary international law shifted from the individual consent of each state to the consent of states generally. And third, the U.S. understanding of the relationship between international law and domestic law shifted away from monism towards dualism - away from an understanding that international law was part of U.S. law unless displaced, towards an understanding that international law was not part of U.S. law unless adopted. The Charming Betsy and The Paquete Habana are landmark cases not because they changed the course of international law in the United States but because they reveal changes in the landscape.

"Probate Lending" 
Yale Law Journal, Vol. 126, 2016
UC Davis Legal Studies Research Paper No. 492

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law
Email: achandrasekher@ucdavis.edu

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibition, opening the door for businesses to invest in other parties' claims. Although some courts, lawmakers, and scholars applaud litigation lenders for helping wronged individuals obtain relief, others accuse them of exploiting low-income plaintiffs and increasing court congestion.

This Article reveals that a similar phenomenon has quietly emerged in the probate system. Recently, companies have started to make "probate loans": advancing funds to heirs or beneficiaries to be repaid from their interest in a court-supervised estate. The Article sheds light on this shadowy practice by empirically analyzing 594 probate administrations from a major California county. It finds that probate lending is a lucrative business. Nevertheless, it also concludes that some of the strongest rationales for banning the sale of causes of action - concerns about abusive transactions and the corrosive effect of outsiders on judicial processes - apply to transfers of inheritance rights. The Article thus suggests several ways to regulate this nascent industry.

"The Social Transmission of Racism" 
Tulsa Law Review, Vol. 51, 2016
UC Davis Legal Studies Research Paper No. 489

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

This essay reviews two books, Robert Wald Sussman, The Myth of Race: The Troubling Persistence of an Unscientific Idea (Harvard University Press 2014) and Osagie K. Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (Stanford University Press 2014). Sussman is an anthropologist who brings his expertise to bear in tracing scientific racism through history. Obasogie is a legal scholar and sociologist who uses both qualitative data gathered through interviews with blind and sighted people and Critical Race Theory to explore racialization's dependence on the idea that race is visually obvious. Each book examines an idea that has sustained racism despite social, political and geographic change. The essay assesses each account and links the authors' analyses to judicial and legislative framings of reproductive rights and to postmodernist scholarship on race, gender and the human body.

"Computer Source Code: A Source of the Growing Controversy Over the Reliability of Automated Forensic Techniques" 
DePaul Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 487

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

The article deals with two legal issues posed by the growing trend in the United States to automate forensic analyses.

Since World War II, we have had alarming insights into the unreliability of both eyewitness testimony and confession evidence. Those insights have prompted the criminal justice system to place greater reliance on forensic evidence. In one Rand study, the researchers found that expert testimony was presented at 86% of the trials examined. This shift to greater use of expert testimony has placed growing demands on crime laboratories. For example, the backlog of unanalyzed DNA samples has become such an acute problem that Congress was impelled to enact the DNA Backlog Elimination Act to provide funding to reduce the backlog of untested rape kits.

In both the public and private sectors, the typical response to the development of a backlog is technological automation. That has certainly held true for forensic analysis. There is now widespread automation in such areas as fingerprint examination, breath testing, and DNA analysis. The argument runs that automation holds the promise of both enhancing efficiency and improving the accuracy of the analyses proffered in court.

That promise turns on the accuracy of the source code controlling the software governing the automated techniques. The source code embeds the instructions determining which tasks the program performs, how the program performs them, and the order in which it performs the tasks. The validity of a program's source code is the most fundamental guarantee of a software program's reliability. Defense counsel have sometimes challenged the software for automated forensic techniques. Early in this century, the defense counsel attacked the software controlling automated infrared breath testing devices. Today they are challenging the software for the TrueAllele program analyzing mixed DNA samples. Those waves of cases have posed two issues: (1) whether the prosecution can lay a sufficient foundation for evidence based on an automated technique without presenting testimony about the computer source code; and (2) whether the defense has any discovery right to access to the code. Almost all the courts have answered the first question in the affirmative and the second question in the negative. In responding to the second question, the courts have reasoned that the existence of validation studies for the technique eliminates any need to scrutinize the source code and that in any event, manufacturers have an evidentiary privilege protecting the code as a trade secret. The purpose of this short article is to critically evaluate the judicial response to both questions.

On the one hand, the article argues that the courts have correctly answered the first question. More specifically, the prosecution may lay an adequate foundation by presenting testimony describing validation studies for the automated technique even if the testimony does not touch on the source code. On the other hand, the article contends that in some cases, the courts ought to accord the defense a pretrial discovery limit. The article explains the limited utility of validation studies and notes that the evidentiary privilege for trade secrets is a qualified one that can be surmounted when the party seeking discovery has a significant need for the information. The article proposes a procedure that judges can employ to resolve the tension between the defendant's need for access to the source code and the manufacturer's legitimate interest in safeguarding its valuable proprietary information.

"Beyond Surveillance: Data Control and Body Cameras" 
__ Surveillance & Society __ (2016) Forthcoming
UC Davis Legal Studies Research Paper No. 494

ELIZABETH E. JOH, University of California, Davis - School of Law
Email: eejoh@ucdavis.edu

Body cameras collect video data - lots of it - and thus many have raised questions about increased government surveillance. But if understood primarily as data collection, surveillance represents only one concern. In our big data age, "seeing, monitoring, and recording the digital footprints is quite different from sharing, releasing, revealing or publicizing the data." Body camera policies must address not only concerns about surveillance, but also data control.

"Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis'" 
Buffalo Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 488

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

Some vocal critics have loudly proclaimed that the challenges of law school economic have reached "crisis" proportions. They point to the well-known facts about recent developments in the market for law schools. Law schools have experienced a precipitous drop in applications. The global recession decimated the legal job market. To make matters worse, rising tuition has resulted in increasing debt loads for law graduates.

In light of the changes in the legal marketplace, stabilization of the budgetary picture is currently the first priority of virtually every American law school. Faculty members have been let go. Staffs reduced. Enrollment of students - and the collection of tuition revenues - have critical budgetary consequences.

Linked to the economic "crisis" facing law schools and students was deep concern with each school's relative placement in the much-watched U.S. News and World Report law school rankings. These rankings, among other things, affect admissions and enrollment, and thus budgetary bottom lines for law schools.

Much less publicized concerns with legal education involve non-financial issues. The lack of racial and other diversity of students attending law school, and ultimately entering the legal profession, and faculty, has long been a problem. In addition, today's students demand a more humane legal education and are asking for additional academic support, career and mental health counseling, experiential learning opportunities, and more. The costs of the additional services and programs have further added to budgetary pressures on law schools.

This Essay contends that law schools should strive to address the noneconomic as well as the economic problems with modern legal education. In a time of considerable change, this is a most opportune time to consider and implement deep and enduring improvements that benefit students as well as the entire legal profession.

"Welfare Queens and White Trash" 
25 Southern California Interdisciplinary Law Journal 289 (2016)
UC Davis Legal Studies Research Paper No. 486

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu

The "welfare queen" is widely recognized as a racialized construct deployed by politicians to undermine support for public benefits and the wider social safety net. Less often recognized or discussed is the flip side of the welfare queen's conflation of blackness with dependency and poverty: the conflation of whiteness with self-sufficiency, autonomy, and affluence. The welfare queen trope, along with media and scholarly depictions of socioeconomic disadvantage as a nonwhite phenomenon, deflects attention from white poverty. Yet data indicate that a majority of poor people in the United States self-identify as white.

This essay, written for the "Reframing the Welfare Queen" symposium, (re)surfaces the existence of white poverty and ponders its (in)visibility, meaning, and significance in relation to the welfare queen construct. Among other things, Pruitt suggests that the welfare queen stigmatype is not just bad for blacks, it is bad for poor whites. First, it obscures white poverty, rendering poor whites and their plight invisible. Second, to the extent we are aware of white poverty, the widespread conflation of whiteness with affluence suggests that poor whites have only themselves to blame, given the benefits widely associated with white-skin privilege.

Given the welfare queen's potency as a racialized construct, we might assume that greater awareness of white poverty would enhance public support for safety net programs because middle and upper income whites would (so the story goes) want to ameliorate white poverty, even if racial animus discourages their support for poor blacks. But Pruitt questions the soundness of this line of reasoning, which discounts the existence and potency of intraracial discrimination in assuming that society feels greater empathy with or concern for the fate of poor whites than for poor nonwhites. In fact, we have several reasons - including empirical studies - to believe that such a well of empathy is missing. A further reason for skepticism is found in a second racialized construct explored in this article: white trash.

"Tax Cannibalization and Fiscal Federalism in the United States" 
Northwestern University Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 491
UC Berkeley Public Law Research Paper No. 2750933

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

The current structure of U.S. federal tax law incentivizes state governments to adopt tax policies that inflict costs on the federal government, at the expense of national welfare. We label this the "tax cannibalization problem."

This article introduces the tax cannibalization problem to the law and policy literatures for the first time. This article also explains how U.S. federal tax law might be restructured so as to alleviate the tax cannibalization problem - to counteract the perverse incentives currently leading U.S. state governments to design their tax systems so as to, in effect, wastefully devour federal tax revenues.

"Stitches for Snitches: Lawyers as Whistleblowers" 
UC Davis Law Review, Forthcoming (2017)
UC Davis Legal Studies Research Paper No. 493

DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

This Article challenges the prevailing wisdom that ethics rules forbid lawyers from blowing the whistle on a client's illegal conduct. While a lawyer is not free to disclose confidential information in every jurisdiction for every legal violation, the ethics rules in all jurisdictions permit disclosure of confidential information pertaining to a client's illegal activities under certain conditions. Proving the lie of the prevailing wisdom, this Article examines a high profile case in the state of New York that ruled a lawyer whistleblower violated the state's ethics rules by revealing confidential information to stop his employer-client from engaging in a tax fraud of epic proportions. The Article argues that the court undertook a deficient analysis of New York ethics rules pertaining to permissive disclosure of confidential client information. Even if the whistleblower had violated his ethical obligations, the New York False Claims Act (the statute under which he brought his action) expressly protects disclosure of confidential employer information made in furtherance of the statute. In addition to New York's statutory shield, federal courts across the country have developed a public policy exception safeguarding whistleblowers for disclosing confidential information that detects and exposes an employer's illegal conduct.

While challenging the previously unchallenged criticism of lawyer whistleblowers, this Article acknowledges the intrinsic appeal of that position. The idea of a lawyer revealing a client's transgressions - particularly for monetary awards paid under various federal and state whistleblower programs - seems unsavory and a threat to the attorney-client relationship. Nonetheless, lawyers have always had the discretion to disclose confidential information to prevent a client from committing a crime or fraud. And although the addition of financial incentives complicates the analysis, modern ethics rules extend to lawyers considerable discretion in revealing confidential client information, even if disclosure makes a lawyer eligible for financial awards.

April 22, 2016

Legal Skills Prof Blog Highlights "Thoughts on the Future of Legal Education" Essay

Thanks to Legal Skills Prof Blog for highlighting my paper "Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis'"

Abstract:     

"Some vocal critics have loudly proclaimed that the challenges of law school economic have reached "crisis" proportions. They point to the well-known facts about recent developments in the market for law schools. Law schools have experienced a precipitous drop in applications. The global recession decimated the legal job market. To make matters worse, rising tuition has resulted in increasing debt loads for law graduates.

In light of the changes in the legal marketplace, stabilization of the budgetary picture is currently the first priority of virtually every American law school. Faculty members have been let go. Staffs reduced. Enrollment of students - and the collection of tuition revenues - have critical budgetary consequences.

Linked to the economic "crisis" facing law schools and students was deep concern with each school's relative placement in the much-watched U.S. News and World Report law school rankings. These rankings, among other things, affect admissions and enrollment, and thus budgetary bottom lines for law schools.

Much less publicized concerns with legal education involve non-financial issues. The lack of racial and other diversity of students attending law school, and ultimately entering the legal profession, and faculty, has long been a problem. In addition, today's students demand a more humane legal education and are asking for additional academic support, career and mental health counseling, experiential learning opportunities, and more. The costs of the additional services and programs have further added to budgetary pressures on law schools.

This Essay contends that law schools should strive to address the noneconomic as well as the economic problems with modern legal education. In a time of considerable change, this is a most opportune time to consider and implement deep and enduring improvements that benefit students as well as the entire legal profession."

March 11, 2016

Professor Peter Lee Receives 2016 Distinguished Teaching Award

Congratulations to Professor Peter Lee, recipient of the 2016 Distinguished Teaching Award! The honor, made possible through the generosity of Bill and Sally Rutter, was presented at the "Celebrating King Hall" event last night at the ARC Ballroom on the UC Davis campus.


Professor Lee receives the award from Dean Kevin R. Johnson.


Professor Lee addresses attendees at "Celebrating King Hall."

For more photos from the event, visit the School of Law's Facebook album and Instagram.

March 4, 2016

"Managing the Legal Beast" with the Student Wellness Committee

On March 3rd, the Student Wellness Committee (SWC) sponsored its first public panel entitled, "Managing the Legal Beast: Panel Discussion on Navigating Law School and the Legal Profession with your Mental Health Intact."  The primary goal of the panel was to open discussion about the challenges for mental health wellness that law students and attorneys face, and discuss how the King Hall community (faculty, staff, students) can address these challenges.  A secondary but equally important goal was to normalize mental health struggles and begin to open the dialogue on how common and shared these challenges are among lawyers and law students in particular.   

I was pleased to be part of a panel that discussed questions about mental health and its challenges from three perspectives: law students, law professors, and practitioners.  Also on the panel was Professor Katie Young, currently a post-doctoral fellow at Stanford, who described her current book project on the law school experience with a realistic view of the stressors of law school and how they exacerbate existing mental health challenges and may produce anxiety and depression for students who previously did not experience these conditions.  The second panelist, Pamela Cohen, an experienced staff attorney with Disability Rights California, the Protection and Advocacy organization for the state funded to represent the interests of people with disabilities, addressed the difficult questions of disclosure of mental disabilities, more specifically, when and if to disclose and why.  She called for students, faculty, and administrators to change the culture from within.

In my segement of the presentation, I focused on the much needed culture shift around individuality and autonomy as fundamental democratic values and how they work at cross purposes to de-stigmatizing mental disability.  Shared inter-dependency and relational autonomy is more reflective of how people interact and demystifies how people actually succeed in law school and in practice.  I also discussed the prevalence of depression and anxiety among the general population --e.g., 1 in 4 people will experience depression in their lifetime--and its higher prevalence among law students--e.g., approximately 1 in 3 law students.  I attributed the disproportionate numbers among law students to at least three factors. First, the changing economic climate that results in fewer available "dream jobs" for law students and the realization that the passion which brought them to law school may not translate into a job in that area (at least at first).  Second, we celebrate imbalance--that is, people who sacrifice self-care in law school and legal practice get celebrated as "hard workers" and "devoted, tireless advocates"--rather than emulating the person who strives to balance law school or legal practice with self-care (eating well, exercise, social support networks).  Third, and relatedly, students come to law school as complex individuals with diverse interests and hobbies and after a short time this rich, deep complexity is reduced to a singular identity--law student.  These three factors take a toll on the person emotionally, physically, and psychologically.  

I also talked about how faculty can help identify law students in need of additional support and begin to shift the culture of silent suffering and stigma attached to mental disabilities.  For example, class attendance can be used as a way to check in on students' learning and also their mental health.  Students who are on call in larger classes and fail to attend class may potentially signal that they need additional support or assistance.  It's a good idea to reach out to these students personally and offer support and an open door.  Also, mental health challenges may be a sign or result of academic difficulties.  With that in mind, it can be useful to design courses to include formative assessments and periodic substantive checks to get a sense of where the class stands.  It's also important to pay attention to students' body language and facial expressions which may signal not only confusion with the materials but general lack of energy, motivation, sometimes associated with depression. Included in my presentation was a quote from Justice Louis Brandeis that I think is particularly apt for law students: "If you would only recognize that life is hard, things would be so much easier for you."

Approximately 30 law students attended the panel with strong support from the Dean's Office.  In attendance were Senior Associate Dean Madhavi Sunder and Senior Associate Dean Hollis Kulwin. I shared a note of support from Dean Kevin Johnson, who could not attend because of another commitment outside of the law school.