UC Irvine Law Review

Thirty percent of female lawyers leave their careers. The same is true for female doctors. Over time, an increasing number of married professionals have recreated traditional gender roles, and society has lost a tremendous amount of training and well-honed talent as a result. Neither workplace discrimination nor family obligations can fully and satisfactorily explain the trend. Both of those theories assume that women take a more dependent and vulnerable position in the household because of constraints, but in one important respect, men are more constrained than women, and they are better off for it: to maintain social status, men have to work. Women do not.

This Article advances a theory and corroborating evidence that the cultural acceptance of female underemployment is a privilege in the abstract, but a curse in practice. Even under the best conditions, the early stages of professional careers involve mistakes, mismatches, and disappointments. An opportunity to escape the stress of the public sphere by focusing on the family may have great appeal in the short run even though the long-run consequences are severe. Asymmetric cultural acceptance creates an easy off-ramp for females, to nearly everybody’s detriment.

The nondelegation doctrine prohibits a legislature from delegating its power to an administrative agency, yet it is famously underenforced—even when the delegation results in the creation of criminal offenses (so-called “administrative crimes”). While this practice appears to scandalize the hornbook presumption that legislatures alone define criminal offenses, it has long been ratified by the Supreme Court and has received little scholarly attention. The few commentators who have addressed administrative crimes highlight the intuition that criminal sanctions are uniquely severe and thus deserving of a more rigorous nondelegation analysis, but they stop there. They do not precisely link the severe aspects of criminal punishment with a requirement for the type of institutions that can create criminal law. This Article provides that link. I argue that the two most significant dimensions of criminal punishment—community condemnation and liberty deprivation—implicate the concerns of two prominent political theories of punishment: expressivism and liberalism. A latent but mostly unstated premise of both theories, I claim, is that criminalization must be undertaken by a democratic institution. Given this, administrative crimes should be seen as illegitimate under either conception of state punishment.

Consider these two seemingly unrelated recent scandals: The publicized fall from grace of cyclist Lance Armstrong, and the truly ruinous Madoff pyramid scheme. These cases (as well as a plethora of more mundane scenarios discussed throughout this Article) share a common feature, hitherto scantly discussed by courts and legal scholars: causal ambiguity in restitution claims involving multiple claimants. In such cases, a wrongdoer was enriched at the expense of others—sometimes a great many others—and it is therefore difficult to determine exactly which possible victim is indeed the source of the wrongdoer’s enrichment. In such cases, it can be near impossible to preponderantly prove the identity of the claimant at whose expense the wrongdoer was enriched. This Article is the first to identify this problem as a reoccurring pattern in restitutionary claims.

By making this novel contribution, the Article fills an important gap in the literature and identifies a new paradigm within the law of restitution, that of causal ambiguity in multiple-claimant cases. This vacuum in the literature on restitutionary claims is especially striking, considering the vast scholarship on a closely related topic, namely causal ambiguity in multiple-defendant tort cases.

The Article argues and demonstrates that the existing rules of the law of restitution do not provide appropriate solutions in multiple-claimant cases. Under existing law, many deserving claimants—sometimes all of them—can be left with no remedy, thereby denied of their rights and not compensated for harms they suffered at the hands of a wrongdoer. Drawing on the more developed literature on causal ambiguity in tort law, we propose a solution for this injustice by presenting, for the first time, a new concept of probabilistic restitution. The Article shows that the proposed regime can lead to just and efficient outcomes, serving the goals of both interpersonal justice and deterrence.

The U.S. Supreme Court’s decisions interpreting the U.S. Constitution in general and the Reconstruction Amendments in particular substantially constrain the ability of legislative and executive actors to address a variety of hot-button political issues, including abortion, gay rights, and affirmative action. So important are the Court’s decisions that the ability to appoint Justices who will shift the Court’s direction has been a central issue in recent presidential campaigns. Throughout history, decisive shifts in the Court’s composition have resulted in correspondingly dramatic shifts in constitutional doctrine. Yet surprisingly, these dramatic shifts have occurred with the Court rarely overturning any precedent.

Although others have identified selected instances of the Court engaging in stealth revision of precedent, this Article is both the first to provide a detailed taxonomy of the methods employed and to exhaustively consider their use in construing the Reconstruction Amendments. This stealth process, which this Article refers to as judicial reconstruction, occurs when the Court employs one or more of three different methods of transforming constitutional doctrine: selective quotation of precedent; re-characterization of precedent; and citations to “dissenting concurrences”—separate opinions in earlier cases that are concurrences in form but dissents in substance. Through the use of these methods, liberal and conservative justices alike have dramatically transformed constitutional law even when their decisions are unsupported by and at times diametrically at odds with the Court’s earlier precedents.

This Article concludes that U.S. Senators and commentators, with their almost laser-like focus on fidelity to stare decisis during the confirmation process, have overlooked—and perhaps even fostered—the opaque practice of reconstructing rather than the transparent process of overruling precedent. It further concludes that those examining judicial nominees’ commitment to respecting precedent should examine not merely their formal fidelity to stare decisis but instead their history of and views on reconstructing precedent.

Since 1970, the Securities and Exchange Commission (SEC) has required public companies to file reports summarizing their financial performance on a quarterly basis. Such mandatory quarterly disclosure has recently been criticized as incentivizing corporations to deliver short-term results rather than developing sustainable, long-term strategies. This Article examines the origins of the quarterly reporting system to assess whether the SEC should reduce the frequency of periodic filings. It concludes that much of the pressure on public companies to deliver short-term results emerged as the market increasingly focused on earnings projections issued by research analysts. The pressure to meet such projections can distort the behavior of public companies, but such distortions will only be significant in certain circumstances. Because it is unclear that the quarterly reporting system substantially impacts company incentives, the SEC should pursue modest reforms rather than take the radical step of eliminating quarterly disclosure. Quarterly disclosure is one example of how securities law tends to promote the short-term interests of transacting investors. In contrast, corporate law, which mediates the interests of shareholders, often gives managers the discretion to consider long-term interests. Strong securities law can be balanced by weak corporate law.

Recent cases involving controversial actions taken by federal agencies under the Trump Administration have highlighted a preliminary procedural nuance unique to litigation under the Administrative Procedure Act of 1946 (APA): the “administrative record.” The APA provides for liberal judicial review of federal agency actions, but limits that review to the “whole record, or those parts of it cited by a party.” This “record rule” limits judicial review to the “administrative record” before the agency when it made the decision at issue. The APA defines the administrative record for agency action subject to its formal procedural requirements, but leaves open the question of what an administrative record consists of for informal agency action not subject to those procedural requirements but nevertheless subject to judicial review.

Lower courts, without definitive statutory text, legislative history, or Supreme Court precedent for guidance, have developed a divergent and sometimes inconsistent body of case law addressing the proper scope of an administrative record for informal agency action. The traditional approach generally would focus on those materials directly considered by the agency decisionmaker alone while categorically excluding most, if not all, internal documents. But more recently, some lower courts have begun to apply an expansive construction of the record rule, requiring agencies subject to litigation to submit any material considered by agency personnel involved in the decision-making process, including an array of internal materials. Two recent cases, involving the Department of Homeland Security’s attempted revocation of the Deferred Action for Childhood Arrivals (DACA) program and Secretary of Commerce Wilbur Ross’s attempts to add a citizenship question to the 2020 Department of Commerce, illustrate the wider movement towards an expansive construction of the record rule for informal agency action.

In this Note, I argue that the expansive approach to the record rule for informal agency action becoming popular in some lower courts is correct, both in terms of the judicial review provisions of the APA it serves and the principles of administrative law the APA furthers. The broader adoption of an expansive approach to the record rule has implications for any area of law touched by federal agencies. Indeed, as the DACA and 2020 Census litigation demonstrate, the composition of an administrative record can have significant consequences for issues of national importance.

This Note situates a roundtable discussion hosted by the University of California, Irvine School of Law Center for Land, Environment, and Natural Resources and the Environmental Policy Innovation Center into scholarly discourse. The Note identifies the three most important areas that the Endangered Species Act must improve to maximize conservation outcomes: promoting recovery, protecting habitat, and managing change. Within these areas, this Note highlights the importance of offering clearer guidance to the implementing Agencies, providing additional flexibility for working with private stakeholders, allowing for change and risk adaptation, increasing ecosystem-management implementation, and enabling proactivity.