UC Irvine Law Review

The Supreme Court’s recent decisions regarding the free exercise of religion threaten fundamental changes to public education. On their face, these decisions are relatively narrow. They prohibit states from explicitly excluding religious schools from participating in states’ tuition subsidy programs, otherwise known as private school vouchers. But school choice advocates and some scholars argue that the rationale in these cases also extends to religious organizations that want to operate public charter schools.

While these changes would drain enormous resources from an already underfunded public education system, even more important interests are at stake: antidiscrimination and basic core curriculum. More specifically, the further expansion of religion into voucher and charter programs calls into question whether states can require religious organizations to comply with antidiscrimination protections and deliver non-religious educational content that is consistent with state standards.

This Article is the first to demonstrate that religious schools’ right to participate in certain education programs is not a right to reset all the rules of those programs. First, states retain authority to control the curriculum that public dollars support in both charter and private schools. Second, states have an affirmative obligation under federal law to ensure that all parties participating in state education programs comply with secular and antidiscrimination standards. Thus, rather than using the Court’s recent free exercise cases as an excuse to retreat from antidiscrimination and secular standards, states must reinforce those norms in a way that is consistent with newly established—but limited—free exercise rights.

This Article seeks to improve enforcement of the duty of companies to safeguard personal data in their possession. It is notoriously difficult for data breach victims to succeed in class actions against companies that failed to take reasonable steps to safeguard their personal data. Many commentators have argued that existing legal rules should be relaxed or applied differently in data breach cases.

This Article argues instead that litigants and the courts should take more seriously unjust enrichment as a cause of action in those cases. The Article makes two main contributions. First, it critically analyzes the two main theories of unjust enrichment observed in data breach cases: the overpayment theory and the “would not have shopped” theory. It in turn proposes an alternative, and more plausible, account of the elements that must be proved for the overpayment theory. Second, it explains how the facilitative effects of these unjust enrichment claims on class actions solve a powerful enforcement deficit with respect to data security.

Despite the massive dollars invested each year by Venture Capital (VC) firms, more than two-thirds of the companies they fund will provide zero return. More problematic, less than 3% of VC funds go to female-led startup teams, and less than 1% to racially diverse founders. While many argue that this underrepresentation will work itself out over time, in reality, these numbers have remained stagnant for over 30 years. This is especially perverse given that diverse startups, when funded, appreciably outperform male-only founding teams.

The VC industry operates under an antiquated model of investing in founders with demographics reflecting those of VC partners (white men control 93% of VC funds, and only 0.2% of VC partners are Black or Latina women). While antidiscrimination law intended to create a level playing field for all, the VC field operates outside this regulatory scheme. In addition to its lack of diversity, ironically it also has a technology problem. Despite the incredible advances in artificial intelligence (AI), and the industry’s focus on tech startups, many VC firms fail to incorporate data analytics and machine learning to guide their decision- making, relying instead on “gut instinct.” This is the first article to comprehensively explore the current state of the VC industry through the lens of behavioral law and economic theory, revealing the field's intransigence and the heuristics and biases infecting its decision-making.

Using insights gained from this analysis, this Article suggests that disruption is possible through a combination of policy and legal initiatives as well as leveraging advances in technology. The Article concludes by offering a novel multipronged solution comprised of a combination of carrots (incentives), sticks (penalties), and AI to motivate behavioral change within the VC industry and stimulate a true meritocracy where gender and racially diverse startups are equitably funded, and innovation flourishes.

A common narrative about modern restorative justice is that it is a revival of historic and indigenous justice practices that have been practiced around the world. Critics of this narrative call it a myth, arguing that the claim is overbroad and unsupported by existing evidence. Embedded in this conversation are questions about how to respect the contributions of indigenous traditions and avoid whitewashing. Such an overwhelmingly broad claim tends to lead to romanticization and whitewashing of indigenous traditions, serving the needs of largely white, Western advocates in yet another colonial endeavor. But ignoring the indigenous contribution to restorative justice altogether is whitewashing by a different route.

This Article offers three main contributions. First, it reveals the current lack of empirical grounding for the common narrative. This descriptive insight motivates the second contribution: the creation of a methodology for better ascertaining the degree to which any historic, indigenous practice did constitute restorative justice. Applying this methodology to investigate the traditional practices of the Igbo and Acholi in sub-Saharan Africa, the Article begins the work of documenting the relationship between restorative justice and historic practices, work that leads to the third and last contribution. Better conceptualizing past practices not only advances our understanding of such practices but also contributes to our understanding of modern restorative justice. Here, the case studies of the Igbo and Acholi reveal a need for restorative justice scholars to engage in greater conceptual and empirical analysis of the role of community in restorative justice practices.

According to the U.S. Supreme Court, the rising number of workplace retaliation claims is a problem, one warranting more stringent requirements for employees to successfully bring claims. The Court’s principal justification for this restrictive approach is a fear of “opening the floodgates” of litigation. This Article critically assesses the Court’s fear of opening the floodgates of retaliation claims, evaluates the Court’s evidence, and argues that such concerns are overstated and misplaced. Rather than a cause for concern, the rise in retaliation claims reflects rising intra-organizational conflict. Social scientists have demonstrated that, as the American workforce becomes more diverse, intra-organizational conflict increases, and the propensity for civil rights violations grows. In other words, claims are on the rise because retaliation is on the rise. Employment discrimination and other related statutes are aimed at mitigating the harms of this expected rise in intra-organizational conflict.

The Article further argues that considerations of judicial economy are particularly misplaced in workplace retaliation cases. Retaliation protections are crucial to the private enforcement scheme Congress developed for civil rights laws generally and employment discrimination laws in particular. Attempting to limit judicial caseloads through restrictive interpretations of anti-retaliation laws eviscerates private enforcement, producing under- enforcement of these core civil rights protections. To remedy the Supreme Court’s wrong turn on retaliation, Congress should act. This Article proposes that Congress adopt a rule of construction mandating broad interpretation of all workplace anti-retaliation statutory provisions. This provision would strengthen critical civil rights safeguards for employees by restoring the optimal and essential function of retaliation provisions.

For the first time in nearly thirty years, in the case of Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court was asked, again, to overturn its landmark ruling in Roe v. Wade finding a constitutional right to an abortion. And with three new Trump appointees and a 6-3 conservative majority, it was finally able to do just that. The Court’s decision in Dobbs has called into question not just the safety of abortion but of other constitutional rights grounded in similar tradition and legal doctrine. This Note considers the effects that the Dobbs decision could have on LGBTQ+ rights in particular and proceeds in four parts. Part I analyzes the cultural similarities underlying the issues of abortion and LGBTQ+ rights. Part II surveys the current Court’s attitude toward abortion and LGBTQ+ rights, as well as its attitude toward the doctrine of stare decisis. Part III analyzes the analogous legal doctrines utilized by the majorities in landmark abortion and LGBTQ+ rights cases. Part IV considers the effects that the overruling of Roe could have on existing LGBTQ+ precedent today and suggests that—to the extent those precedents are put at risk—modern practitioners going before the Court should seek to actively decouple these issues in the eyes of the Justices.