UC Irvine Law Review

The 2017 iteration of the #MeToo movement has brought tremendous attention to the problem of sexual harassment in the workplace, as well as in a variety of other contexts. We learned that sexual harassment is rampant, varied in form, and harmful, or, more accurately, that it is still all of these things. Sexual harassment at work has existed as long as women have worked, whether paid, valued, or enslaved. The law of sexual harassment has a much more recent provenance. Courts began to recognize harassment as a form of sex discrimination in the early 1980s, and the entire current structure of sexual harassment doctrine was in place by the end of the 1990s. The law, in broad brush, prohibits sexual harassment in the workplace and gives its survivors access to a variety of remedies when the employer permits it to happen. Yet today, almost four decades after the law first categorized sexual misconduct as a form of unlawful discrimination, an average American workplace can feel remarkably like a saloon in the Wild West.

This Article will explore the ways in which the #MeToo movement has affected (or might affect) institutional response to sexual harassment. This entails first understanding some early lessons from the #MeToo movement. Then, it explores the legal regime that both unequivocally treats harassment as prohibited and sometimes permits it to flourish. The Article will first consider the nature and degree of the problem, before exploring the development of sexual harassment law and the key components of the current legal doctrine designed to address misconduct. It will turn then to the ways in which existing law is inadequate and has largely failed to address sexual misconduct at work. It concludes with a consideration of whether #MeToo will push institutions harder, or at least differently, to respond to sexual harassment—and at what cost. In the end, it concludes that the #MeToo movement has brought powerful forces to bear on a problem that the law has failed to eradicate, but that larger problems of gender inequity will likely forestall further progress.

Artificial intelligence (AI) can infer health data from people’s behavior even when their behavior has no apparent connection to their health. AI can monitor one’s location to track the spread of infectious disease, scrutinize retail purchases to identify pregnant customers, and analyze social media to predict who might attempt suicide. These feats are possible because, in modern societies, people continuously interact with internet-enabled software and devices. Smartphones, wearables, and online platforms monitor people’s actions and produce digital traces, the electronic remnants of their behavior.

In their raw form, digital traces might not be very interesting or useful; one’s location, retail purchases, and internet browsing habits are relatively mundane data points. However, AI can enhance the value of digital traces by transforming them into something more useful—emergent medical data (EMD). EMD is health information inferred by artificial intelligence from otherwise trivial digital traces.

This Article describes how EMD-based profiling is increasingly promoted as a solution to public health crises such as the COVID-19 pandemic, gun violence, and the opioid crisis. However, there is little evidence to show that EMD-based profiling works. Even worse, it can cause significant harm, and current privacy and data protection laws contain loopholes that allow public and private entities to mine EMD without people’s knowledge or consent.

After describing the risks and benefits of EMD mining and profiling, the Article proposes six different ways of conceptualizing these practices. It concludes with preliminary recommendations for effective regulation. Potential options include banning or restricting the collection of digital traces, regulating EMD mining algorithms, and restricting how EMD can be used once it is produced.

As economic inequality reaches new heights every decade, academics stress the importance of the tax system in matters of equity. In contemporary winner-take-all markets, much of the massive income and wealth accumulated by the rich are the result of deliberate and calculated economic gambles that turned out in their favor. Yet theories of distributive justice such as Ronald Dworkin’s brute luck egalitarianism have committed themselves to the position that even if these market outcomes are the results of luck, the unequal outcomes are justified insofar as investors chose to take such risks.

This Article argues, in contrast to the aforementioned theories, that inequalities resulting from option luck, the luck involved in deliberate and calculated gambles, remain unjust. This theory entails novel arguments in favor of imposing additional tax burdens on the most well-off members of our society and taxing capital income by demonstrating the extent to which unequal market outcomes are undeserved. Technological developments have led to winner-take-all markets in which even small amounts of option luck can lead to a wide divergence in results. A further tax imposed on the winners of such markets helps neutralize the economic inequalities resulting from luck. Differences in capital income are partly unjust because differential returns to investments are attributable, in large part, to chance. A tax on capital income compresses the distribution of these returns by lowering the returns to winning bets (by taxing such returns) and the losses of losing bets (by allowing deductions for such losses).

“Presidential administration” has been discussed for the last twenty years. However, scholars have not considered whether courts are doing the same thing. Like presidents, courts may oversee the quality of administrative action under authority granted by the Constitution and legislation. And also, like presidents, courts make policy decisions in lieu of the agency that has been delegated policymaking power.

This Article draws on case law and legal scholarship, as well as work from public administration and political science, to construct a paradigm of “judicial administration.” More specifically, it offers a history of and traces the tension between the “overseer” and “decider” approaches to judicial administration. In addition, it explains the implications of these approaches for the constitutionality and efficacy of judicial review today.

First, this Article considers judicial administration as accomplished through the reinforcement of administrative procedure. These efforts were criticized as judicial policymaking by formalists. However, as this Article notes, these decisions focus on reconciling administrative action with constitutional, technical, and rule-of-law norms and are thus rooted in overseer impulses. In other words, the decider dimensions of even the most intrusive judicial review of agency process have been overstated.

Second, and in contrast, this Article notes that the recent call to overturn Chevron constitutes uncritical advocacy for the decider approach to the judicial administration of statutory directives. In the past, courts have limited their role in the administration of legislation to that of overseer. However, today’s formalists seek to implement de novo review wholesale. This effort is, at its core, a push for courts to decide policy in lieu of the agencies to which Congress has delegated policymaking power or to which policymaking power belongs as a matter of executive authority.

This may not trouble functionalists much. But it should trouble the very formalists who denounce Chevron. First, this evinces an inconsistency in their position, given that many have condemned what they identify as judicial policymaking in administrative process. More broadly, as in presidential administration, the decider approach to judicial administration runs the risk of treading on the legislature’s authority to make the law. To the extent this is the case, calls to dismantle the administrative state and instate the judiciary in its place are focused on reimbursing the wrong branch of government.

For those interested in judicial intervention as a means of regulating the administrative state, including the exercise of presidential power, the overseer model of judicial administration is less likely to offend a formal conception of the separation of powers. Furthermore, longstanding paradigms of judiciary as overseer confront the pressing issues—namely, the denigration of administrative due process and corrosion of expertise in service of the President’s agenda—resulting from today’s unsupervised executive branch.

“Respect for the rule of law in all its dimensions is critical to the fair administration of justice, public order, and protection of fundamental freedoms.” The rule of law surrounding the Fifth Amendment right against self-incrimination will not be respected by the police or public at large until major loopholes that allow the police “to take advantage of indigence in the administration of justice” are closed. The major loophole this Note tackles is the “in custody” requirement for Miranda warnings, which allows officers to question suspects without providing them with a Miranda warning. Specifically, this Note focuses on the damage such a loophole causes in the context of emergency medical care. It considers scenarios in which the power dynamics are so severe the suspect involuntarily confesses to a crime. To close this specific loophole, courts must expand what is considered “custodial” to represent the actual judicial intent behind Miranda: protecting the disadvantaged from state coercion and abuse. This conclusion is rooted in the judicial ideology that is used in the other Criminal Constitutional Revolution cases, which all sought to protect against police tendency to take advantage of indigence. This Note is not seeking to expand the rights of the accused. Rather, it is focused on closing a loophole in an existing right.

This Note builds on the growing scholarly discourse involving the #MeToo movement and places an importance on discussing the issue of spousal rape in the #MeToo era. It fills a crucial gap in legal scholarship by articulating how sexual violence during marriage persists despite greater attention to sexual violence in the public discourse. There may be a blind spot in the popular discourse surrounding the #MeToo movement. This Note argues that the current conversation around sexual violence in the workplace fails to address the importance of fixing sexual violence in other areas (such as the home). The Centers for Disease Control and Prevention (CDC) reports that 18.3% of women experience some type of sexual violence in their intimate relationships. A majority of states essentially permit these forms of intimate partner violence within state statutes. In response, this Note provides a robust empirical analysis of states’ handling of spousal sexual violence. This Note exposes how loopholes in the law remain and how the #MeToo movement can influence the abolishment of these loopholes.

This Note proceeds in four parts. Part I covers the history of the spousal rape privilege and explains both the historical and modern justifications for spousal sexual violence. Part II explores previous feminist movements’ impact on the eradication of sexual violence. Next, Part III presents the current spousal exemptions in state statutes. Additionally, Part III tracks any #MeToo era repeals of spousal sexual violence statutes. Finally, Part IV recommends eliminating spousal exemptions to provide a legal remedy for spouses who seek one. Part IV also acknowledges that noncarceral approaches are necessary.