UC Irvine Law Review

The fierce determination to require a bar exam during the COVID-19 pandemic left quite an impression on new lawyers entering the profession. State bars and state supreme courts made their position clear: the bar exam provides a screening function necessary to safeguard the public. Many disagreed.

Even a cursory look at attorney discipline reveals that the lawyers who get into disciplinary trouble are not mostly new lawyers. The lawyers who get into trouble tend to be more experienced lawyers, who have not had any formal or objective tests of their ability to function since their original bar exam pass. The only check on their performance is discipline after harm has been done.

Regulators deem the bar exam and character and fitness as necessary tests at the entry gate to the profession. As I contend in this Article, however, evidence supports regular administration of these tests throughout lawyer careers, not just at the beginning. I challenge the profession to consider whether the entirety of the current regime for assuring lawyer competency and quality can be improved to serve the public.

Immigration advocates have long objected to both the constitutionality and conditions of immigration detention. However, legal challenges to the practice have been largely unsuccessful due to immigration law’s “exceptionality.” Placing recent litigation carried out against immigration detention during the COVID-19 pandemic within the context of the judiciary’s approach to immigration, this Article argues that litigation is an extremely limited strategic avenue to curtail the use of immigration detention. I then argue that anti-immigration detention advocates should attempt to incorporate their agenda into criminal legal reform and decarceration efforts. This is important for both movements. Normatively, immigration detention raises comparable issues: Namely, that jailing people is, on the one hand, an extreme and cost-ineffective form of social control, and on the other, a tool to marginalize or “otherize” entire communities. Furthermore, there is evidence that ongoing efforts to decarcerate states and localities may be foiled by immigration detention. To the extent, therefore, that decarceration reforms are based on commitments to freedom or condemnation of the extensive use of carceral institutions, they are incomplete and even dangerous without including measures to address immigration detention. Immigration advocates, on the other hand, are more likely to succeed by placing the anti-immigration detention agenda within the scope of larger criminal legal reform than by pursuing immigration detention reform or through litigation.

In Shakespeare’s play, King Lear, an aging ruler relinquished control to two of his three daughters. The succession failed miserably, destroying his family and destabilizing his kingdom. King Lear shows why few family businesses survive beyond three generations. Understanding Lear’s failure is crucial to avoiding Lear’s fate, whether the family business in question is a monarchy, a media empire, or a hardware store. The conventional wisdom is that Lear gave away his kingdom too soon and left himself vulnerable to predatory heirs. This has been referred to as the “King Lear Problem.”

The conventional wisdom is wrong. Lear’s succession plan failed because he waited too long. Like Lear, those who control family businesses are often reluctant to step aside. For example, until he was well into his nineties, Sumner Redstone declared that his succession plan was to never die. The predictable consequence was litigation that engulfed the companies he controlled, including CBS and Viacom. Yet, despite its importance, the question of family-business succession has been neglected by legal scholars. Using King Lear as a framing device, this Article identifies obstacles to succession and shows how legislative initiatives, judicial intervention, and private ordering can facilitate the timely transfer of ownership and control across generations.

If ever there was a time in history in which whistleblowers have taken center stage, it has been the past two years. From COVID-19 to Trump’s first impeachment trial, whistleblowers have played a vital role in bringing to light information otherwise impossible to obtain. While the value that whistleblowers bring to government, organizations, and society has always been immeasurable, it is still the case that whistleblowers ultimately suffer a disastrous fate. They have made the decision to speak out against wrongdoing, often risking their jobs, livelihoods, and ability to thrive in their respective industry due to harassment, demotion, exclusion, or termination. As a result, the emotional harm that they naturally suffer is significant. In some cases, it even leads to depression, suicide, and other devastating consequences. Yet one of the most prominent federal whistleblower programs today—the Securities and Exchange Commission’s (SEC) whistleblower provisions under the Dodd-Frank Act—is an anomaly in numerous respects. It is one of the only federal whistleblower programs that fails to offer non-economic, emotional damages as a remedial provision. After examining personal accounts of whistleblower experiences, this Article will conduct a comparative analysis of the damages available under the SEC’s whistleblower program of the Dodd-Frank Act as compared to several other notable whistleblowing statutes, some of which are also within the domain of the investment markets. This Article will then propose a theoretical basis in support of emotional damages for whistleblowers by both incorporating deterrence theory under economic principles in tort law and undergoing a “rights vs. remedies” analysis that considers the substantive and procedural considerations of ensuring that whistleblowers, in their pursuit of justice against their retaliators, are truly made whole.

“An odd fact of the U.S. legal system for public companies is that every crime is also securities fraud: If a company does a bad thing, and regulators find out about it, then the bad-thing regulators can punish it for doing the bad thing, but the securities regulators can also punish it for not disclosing the bad thing to shareholders. . . . It is a strange combination: Generally speaking the companies do the bad things on behalf of shareholders—to make more money for them—but then the securities regulators come in and fine them for defrauding shareholders.”

-Matt Levine

Securities litigation is a virtually inevitable fact of life for any public company. Often, investors sue because the firm’s managers engaged in fraud that directly harmed the shareholders—say, by doctoring the firm’s financials, or lying about known business prospects. However, shareholders also sue their companies when those companies engage in conduct that primarily harms a different set of constituents. When a drug on the market proves to have dangerous side effects, a faulty car battery bursts into flames, or an oil rig explodes, it’s difficult to say that the most direct victims are the companies’ shareholders. Yet shareholders commonly sue under the federal securities laws based on precisely this kind of conduct, on the basis that the managers should have better disclosed the underlying facts, and investors were harmed by the resulting drop in stock price because they did not. In recent years, these cases, dubbed “event-driven securities litigation,” have become more common and have drawn increasing criticism on the grounds that they are opportunistic and generally lack merit. However, there has so far been no comprehensive examination of these lawsuits.

This paper seeks to fill the gap by investigating the prevalence and attributes of these lawsuits. In a sample from 2010 to 2015, I find that roughly 16.5% of securities class actions arise from conduct where the most direct victims are not shareholders. However, I find that these cases have roughly a 20% lower likelihood of being dismissed and settle for significantly higher amounts. These lawsuits are also more likely to be brought against large defendant firms, more likely to involve an institutional investor as a lead plaintiff, and much more likely to involve a non-SEC investigation or inquiry than cases where the primary victims are shareholders. Many of these attributes are used in the literature as proxies for merit. However, I argue that the merit of these cases is not clear-cut. Further, from a policy perspective, while these cases may have deterrence value, they may not be an optimal means to monitor corporate misconduct that harms outsiders.

The current landscape of surrogacy laws in the United States is uneven and broken in many places. Some states go so far as to criminalize surrogacy, and other states do not have any surrogacy laws on the books whatsoever. The lack of legal support for surrogacy arrangements, and for gestational surrogacy contracts in particular, infringes upon the reproductive autonomy of intended parents and surrogates alike. This Note argues that gestational surrogacy contracts should be enforced across the United States and looks to Article 8 of the Uniform Parentage Act of 2017 as a stepping-stone toward uniform, nationwide enforcement.

This Note considers the current framework of states’ death with dignity laws and analyzes physicians’ views of the legal standards to determine whether the current procedures in death with dignity states adequately protect the patient’s interests. Aid in Dying (AID) legislation attempts to balance individual privacy interests with state interests: obtaining an ideal balance is the state legislature’s goal and is the topic of much advocacy. This Note examines the current laws from a medical perspective and considers how physicians, as the ones implementing the laws, view their role and the legislative safeguards.

Part I reviews the history of AID through Supreme Court cases and concludes that AID is not a recognized constitutional right, and so legislation prohibiting or regulating AID is within the discretion of state legislators. Part II examines the state interests that are implicated by AID and physician concerns with legislation meant to protect those interests. Part III provides suggestions that states could implement to address physician concerns, including increased physician training, increased physician reporting requirements, and increased government oversight.