UC Irvine Law Review

People with criminal records must find and keep work to reintegrate into society. But private employers often categorically exclude candidates with criminal record histories, especially if the candidate is African American or Latinx. The conventional wisdom is that workplace laws offer little to address this problem. People with criminal records are not a protected class under Title VII, and many employers fear that hiring people with criminal records invites negligent hiring liability. Ban the Box privacy laws delay but may not deter overbroad criminal background checks.

This Article challenges this standard account by shifting focus to the state in imposing arbitrary barriers to work. I expose a dignity interest in the removal of these unnecessary barriers, or “labor redemption.” I find foundations of labor redemption in successful constitutional challenges to denials of public employment and occupational licenses. Labor redemption is also, increasingly, a statutory right, in the automated sealing and expungement of old and minor criminal records, and issuance of state certifications of individuals as rehabilitated.

Reconceiving of these criminal justice reforms as work law protections can resolve structural limitations to Title VII and Ban the Box laws by providing evidence of rehabilitation, and permit courts to balance the redemption and security interests in negligent hiring claims. Labor redemption also offers a law reform approach to facilitate reintegration through work without imposing new legal obligations on private employers, or requiring an extension of existing employment laws. This Article’s assessment offers lessons for other areas in which private decision makers exclude candidates because of state-imposed stigmas, especially the close analogy of housing discrimination.

Economic analyses of both crime and regulation writ large suggest that the subjective cost or value of incentives is critical to their effectiveness. But reliable information about subjective valuation is scarce, as those who are punished have little reason to report honestly. Modern “big data” techniques promise to overcome this information shortfall but perhaps at the cost of individual privacy and the autonomy that privacy’s shield provides.

This Article argues that regulators can and should instead rely on methods that remain accurate even in the face of limited information. Building on a formal model we present elsewhere, we show that variability in a defendant’s subjective costs of punishment should be a key consideration in any incentive system, whether it be criminal law or otherwise. Our model suggests that this variability can be mitigated with some familiar and well-tested tools. For instance, in some situations, ex ante taxes on behavior that create a risk of harm can be preferable to ex post punitive regimes, such as the criminal law, that target primarily harms that actually arise.

Because of what we show to be the centrality of variation in subjective costs, we also argue that long-standing approaches to criminal theory and practice should be reconsidered. For example, economic theory strongly prefers fines over other forms of punishment. We argue that this claim is typically right—indeed, it is understated—when applied to firms. But fines can be the wrong choice for incentivizing most humans, while ex ante taxes are a promising alternative. We also show that this same analysis counsels that, if prison is the most viable punishment available, it can be more efficient to make prisons safer and less alienating.

In December 2018, the Chair of the House Foreign Affairs Committee published a report detailing how the U.S. Agency for Global Media, the central federal state media agency, illegally targeted social media ads at Americans at least 860 times from 2016 to 2018. The U.S. Agency for Global Media and other U.S. state media agencies have enormous resources, and if left unchecked, could unduly influence public opinion, threaten the free and independent press, and subvert democratic accountability. To address this growing concern, this Article proposes a new, comprehensive legal test for defining and identifying state media that incorporates existing approaches for analyzing government publications employed by the federal government and independent media platforms.

This Article critically examines calls by scholars, legislators, and regulators advocating the imposition of fiduciary duties upon a broad range of actors including judges, jurors, agencies, parents, friends, and even entire countries. The Article examines the physician-patient relationship—an archetypal and frequently cited relationship in which fiduciary duties, administered by courts, are asserted to work well. It argues that some of the most significant problems fiduciary duties are used to address like asymmetry of information, conflicts of interest, and professional conduct have not only been handled badly by courts, but have actually found more effective resolution through legislative fact-finding, acknowledgment of the complexity of medical practice, and ultimately regulatory solutions aimed at sources of conflicts of interest and specific circumstances in which claims for medical malpractice arise. Behind many of these initiatives are physicians themselves—who experience the sources of potential conflicts and endeavor to create self-regulatory and legislative solutions to them. In contrast, court-administered fiduciary duties are often marginalized as judicially manageable claims related to the duties of loyalty and the duty of care converge, litigants focus on settlement, and the high expectations held for fiduciaries are rarely enforced. The Article concludes that not only may imposing more fiduciary duties on more relationships not generate the benefits many scholars suggest, but that doing so will stymie more targeted and effective solutions to problems that occur in trust relationships.

Public nuisance claims against fossil fuel companies, drug companies, lead paint manufacturers, and other industries have raised the specter of onerous abatement orders and damage awards. While courts sometimes have rejected these industry-oriented public nuisance claims on their substantive merits, in climate change cases federal district courts have turned to doctrines of avoidance—including jurisdictional defenses and justiciability doctrines—to dismiss cases and avoid reaching the substantive merits. This dodging of public nuisance, often supported by questionable legal analysis, not only undermines the functions of tort law, but also cuts short important discussions between the judiciary, the political branches, and the broader public. Although plaintiffs ultimately may not succeed, courts should fulfill their responsibility to address public nuisance claims on their substantive merits, rather than reflexively relying on avoidance doctrines to dodge such claims.

Economic segregation has increased over the past half-century. The trend of rich localities getting richer while poor localities get poorer is particularly concerning because it limits upward mobility and perpetuates intergenerational income inequality. This Article makes the novel argument that the state and local tax deduction subsidizes economic segregation. It arrives at that conclusion by showing that the “local tax deduction” provides a greater subsidy, per capita, for wealthy, economically segregated localities because only those localities have a critical mass of wealthy taxpayers who claim the deduction. This allows wealthy localities, but not poor localities, to provide services at a cost less than face value to their residents. This Article argues that the deduction’s subsidy for wealthy localities rewards and likely contributes to economic segregation because it provides an incentive for the wealthy to segregate into wealthy, subsidized localities over less segregated and less subsidized localities. This Article’s analysis and arguments are particularly relevant in light of recent controversy surrounding the state and local tax deduction, including the new $10,000 limit on the deduction, efforts to circumvent this limitation, and congressional proposals to reform it.

The kill zone theory is a legal doctrine that does not exist in statute but has been used in jury instructions to aid in securing convictions for attempted murder charges. As a result of the kill zone theory, individuals in California have received lengthier sentences and, in some cases, have been convicted of crimes that fail to meet the requisite specific intent for attempted murder cases. The kill zone theory has no purpose in California law but to make the path to conviction easier and to put defendants in jail for longer. The kill zone theory is an unnecessary tool because there are several alternatives that would serve the same purpose of ensuring individuals do not evade punishment for endangering the lives of others. This Note will discuss the kill zone theory and how it came to be, explain the problematic aspects of the doctrine that end up harming defendants, propose alternative solutions to the kill zone theory, and conclude that the kill zone theory should no longer be used in California.

The section 754 election of the Internal Revenue Code allows partnerships to make basis adjustments to avoid potentials for double taxation that can arise following transfers of partnership interests and distributions of partnership property. Once made, a 754 election applies to all future tax years and is revocable only with the consent of the Internal Revenue Service (Service). One subsection of the Treasury Regulations addresses when the Service might approve or deny a partnership’s request to revoke a 754 election. Despite the process contemplated in this regulation, until recently, partnerships could default out of a 754 election without Service approval through a technical termination. The lack of recorded application of the regulation implies that partnerships have largely not needed to rely on—and the Service has not needed to apply—the 754 election revocation regulation. The repeal of technical terminations under the 2017 Tax Cuts and Jobs Act, however, foreclosed the ability of partnerships to default out of a 754 election, creating not only a renewed permanence of 754 elections but also a new need for guidance concerning requests for revocation. In anticipation of both partnerships’ and the Service’s need to rely more heavily on requests for 754 election revocation, this Note provides potential factors the Service might use to consider such requests and highlights other ways partnerships might still effect a 754 election revocation without Service approval.