UC Irvine Law Review

Scholars and policymakers have tried for years to solve the tenacious and harmful crisis of low-quality, erroneously granted patents. Far from resolving the problem, these determined efforts have resulted in hundreds of conflicting policy proposals, failed congressional bills, and no way to evaluate the policies’ value or impact or to decide between the overwhelming multiplicity of policies.

This Article provides not only new solutions but a new approach for designing and assessing policies both in patent law and legal systems more generally. We introduce a formal economic model of the patent system that differs from existing scholarship because it permits us to (1) determine how a policy change to one part of the patent system affects the system as a whole and (2) quantify the impact of policy changes. Existing scholarship typically analyzes a policy by assessing its effect on just the targeted element of the patent system, but legal systems are complex with interrelated components, and players react along multiple margins, so these analyses are incomplete and sometimes incorrect. Our approach fixes this problem, providing a comprehensive understanding of how a policy change affects the patent system from beginning to end. It also permits us to conduct complex analyses such as varying multiple policies at once. Further, much existing scholarship fails to quantify the magnitude of a policy’s effect, and even empirical scholarship can only measure the effect of an already-implemented policy, not predict the effect of a proposed change. Quantification is critical because policies generally have multiple effects, often in countervailing directions. Quantification—as shown using our model—permits scholars to determine the overall direction and size of a theoretically ambiguous effect. Quantification also allows us to compare the social welfare effects of different reforms so that policymakers know where to focus their efforts.

We apply our model to several of the most prominent policy debates in patent law. We conclude that certain reforms, such as regulation of settlement licenses and increased examination intensity, yield large gains in social welfare and should be prioritized. Other reforms that are popular with scholars, including decreasing the availability of injunctions and reducing litigation costs, produce surprisingly small gains in social welfare. Often, existing scholarship operates too much on intuition which, we show, can be wrong. Our new approach to patent reform provides an approach that offers deeper understanding and a more effective evaluation framework.

The child welfare system is the system through which U.S. state authorities identify and intervene in families seen as posing a risk of abuse or neglect to their children. Impacted families, advocates, and scholars have joined in a growing chorus in recent years, demonstrating how this system—which many now refer to as the “family policing” system—destroys families and communities as opposed to supporting them. Many now call for the system’s abolition, arguing that the system, while masquerading as one of care and benevolence, is in fact an integral part of the carceral web constituted by criminal policing, prisons, jails, and other punitive and oppressive institutions. Far from being a system designed to support families, it instead is a system of subordination and control.

While this movement has been growing, the family policing system, like its criminal counterpart, has been turning to risk-prediction algorithms to help it with its work. In prior scholarship, I documented the development of these predictive tools and highlighted a number of preliminary associated risks. This piece brings a new lens to the issue, arguing that a key mechanism by which the family policing system accomplishes its subordinating design is through the regulation of knowledge production and sharing. The system selectively and systematically discredits the knowledge of the parents it targets. Borrowing a concept from political philosophy, this piece identifies this harm as that of “epistemic injustice”: the distinct form of injustice that occurs when a person or group is harmed in its capacity as a holder of knowledge. Through perpetrating epistemic injustice, the system acts to maintain the social order. As the system turns to algorithms to rank and categorize its targets, it reinforces old ways of doing business and creates new mechanisms by which to assign and police epistemic worth.

This piece explores the ways that family policing’s turn to “big data” risk-prediction algorithms scales up and expands the system’s already pervasive epistemic injustice.

Despite the United Nations’ (UN) ongoing commemoration of the International Decade for People of African Descent and direct calls from UN member states for the body to confront systemic racism in the United States, the United States has with the support of its allies—successfully blocked measures beyond those which gently encourage mere aspiration to racial equity. Moreover, notwithstanding formal guarantees of equal access to justice and accountability for human rights violations, people of African descent and majority Black member states are systematically constructed out of international policymaking authority and legal protections at the UN—leaving them vulnerable to aggression, exploitation, and extraction.

This Article contends that the UN and its contemporary public international law regime, created and dominated by settler colonial states, has no ability to combat anti-Black racism because it has no interest in so doing; rather, the regime is both the manifestation of global racial contracting and the mechanism by which such contracting persists. The structure of the UN, along with the substance and procedure of public international law, work together in coordinated fashion to guarantee that the racial contracts in force in individual states are also performed, enforced, and protected within a global Racial Superstate.

Forty years after the widespread popularization of residential condominium ownership in the United States, millions of Americans now live in aging, densely occupied structures that are subject to little (if any) ongoing regulation of structural safety. Most structural safety requirements are imposed and enforced at the time of initial construction, thus relegating questions of how to maintain a building’s structural integrity to individual owners and the mechanisms of condominium governance. However, reliance on voluntary action by unit owners too often falters because the divided ownership characteristic of the condominium form deters associations from investing in preventive maintenance. Postponement of critical repairs is especially likely when structural safety risks are neither visibly apparent nor easily understood without structural engineering expertise. But tragically, the failure to address structural deterioration can be a deadly mistake, as demonstrated by the 2021 collapse of Champlain Towers South in Surfside, Florida.

This Article tackles the problem of structural deterioration in the large and growing stock of aging residential condominiums. It argues that building codes should be reformed to mandate periodic structural safety certifications, while also recognizing that regulation alone may be insufficient to ensure completion of expensive structural repairs when individual owners are unwilling or unable to pay for them. After explaining how property law’s prioritization of liens impedes condominium associations from developing innovative strategies for financing critical structural repairs, the Article proposes reforms that would incentivize the development of a debt market to enable associations to finance those repairs while allowing cash-strapped owners to remain in their homes.

Recent Supreme Court decisions eroding protections for race-class-gender subjugated rights claimants have drummed up alarm about the legitimacy of the Court. Much discussion focuses on the need to reform the Court, reflecting a widely shared belief that the institution is inclined to abjure checks on the coercive apparatus and punishment bureaucracy (e.g., police) while failing to vindicate the rights of disadvantaged groups. The lower federal courts, however, while not only implementing the Supreme Court’s rights-retrenching decisions but, in some cases, dipping below the floor of protection the Court itself has recognized, have received relatively scant attention. This vacuum persists despite the fact most of the content of federal law is developed in the lower courts. This Article attempts to fill this void by exploring the desirability of Congress establishing a specialized federal appellate court with exclusive jurisdiction over cases brought under 42 U.S.C. § 1983, which I refer to as “specializing” Section 1983.

Many court reform proposals face obstacles because they have a political valence that serves as an impediment to their implementation at a time when there is intense political polarization. To ignore the complexities of the political economy into which any court reform proposal would be airdropped would plainly be shortsighted. I therefore suggest an alternative focused on lower federal courts that does not overtly favor either civil rights plaintiffs or governmental defendants; instead, the proposal is driven by neutral principles that will not only bring about neutral benefits but will also eliminate the unfair and one-sided aspects of current qualified immunity doctrine that disproportionately favors governmental defendants.

I suggest that specializing Section 1983 will develop subject-matter expertise in Section 1983 cases, which is (neutrally) good because expertise enhances the quality of judicial decision-making. This expertise will in turn lead to more efficient disposition of Section 1983 cases where qualified immunity is invoked—a neutral benefit. Most notably, the proposed court would establish uniform, nationwide law. Currently, splintered decisions from different regional courts of appeals create an artificial constraint on plaintiffs’ ability to overcome qualified immunity. The uniform, nationwide law would address such fragmentation and aid in generating clearly established law to bring some internal coherence to the qualified immunity doctrine.

Government enforcers have long contended with corporate misconduct, from the abuses of corporate power and monopolization of the late 19th and early 20th centuries to the set up to fail products and digital dark patterns of the 21st century. This Article explains the Consumer Financial Protection Bureau’s (CFPB) Policy Statement on Abusive Acts or Practices, which is appended to this article, and its importance in protecting people from business excesses. The statutory prohibition on illegal abusive conduct was a response to the predatory mortgage lending practices that drove the 2007-2008 financial crisis and sought to reach conduct that might not be considered “unfair” or “deceptive.” However, it is rooted in early 20th century attempts to regulate fair dealing. As government enforcers confront new challenges, they can look to a framework of consumer protection that is ingrained in the American tradition – one based on Congress’ understanding of right and wrong and market reality, rather than theoretical economic models.

This Article places the prohibition on abusive conduct as part of a history dating back to the common law standards of fair dealing. Congress has long tailored federal prohibitions in response to changes to business practices and given government enforcers new tools to meet new challenges. The Article also discusses the key objectives of the statement, including providing a straight-forward and analytical framework to help enforcers evaluate wrongdoing and promote a visceral understanding of the prohibition. Finally, the Article closes by outlining some key aspects of the policy statement and the public policy concerns motivating them, including condemning conduct that tricks people or exploits unequal bargaining power.

As a result of the women’s rights movements of the twentieth century, the law shifted the origin of family creation from the married man to the person who gave birth, resulting in the presumption of maternity as the law has now. This Note explores how the presumption of maternity fails to provide legal recognition to nontraditional families—including families who use Assisted Reproductive Technology, same-sex parents, and unmarried parents—and how it furthers gender and sex-based norms within a family, parenting, and marriage. In response, the Note identifies the underlying justification to the modern presumption of parentage: the belief that a person intends to be a legal parent through the act of giving birth to the child or by marriage to the child’s birth parent. By looking at how intent to parent is already a part of our legal and social understanding of parentage, the Note argues that the law should shift away from the presumption of maternity in favor of an intent-based parentage system when assigning legal parents at the time of a child’s birth. As part of shifting to an intent-based system, the legal system will better reflect our social notions of the family and each person’s chosen role within the family.

The admission of a criminal defendant’s confession into evidence is almost always fatal to a defendant’s case. And this is no surprise: common sense advises that a confession is particularly incriminating and definitive in establishing a defendant’s guilt. But while a confession’s persuasiveness is not inherently problematic, its unique ability to convey guilt poses a problem when a confession happens to be false. This problem is wrongful conviction. In fact, false confessions are one of the leading causes of wrongful conviction, and individuals who are at risk due to their age, intellectual disability, and/or mental health are especially susceptible.

While the admission of confessions into evidence is governed by constitutional and evidentiary protections, these protections are insufficient to screen for the admissibility of false confessions as they do not govern a confession’s reliability. Accordingly, a new evidence rule is necessary, one that accounts for the confession’s reliability prior to its admission into evidence. This rule must specifically account for the factors known to heighten an individual’s risk of false confession, as these factors may call a confession’s reliability into question. This Note proposes one possible formulation for this new evidence rule and discusses foundations in the current legal landscape that support the proposed framework.