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University of California, Irvine School of Law

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Full-Text Articles in Law

Transnational Access To Justice, Christopher A. Whytock Feb 2021

Transnational Access To Justice, Christopher A. Whytock

Faculty Scholarship

The study of access to justice has long had a strong domestic focus. This Article draws attention to a different aspect of access to justice, one that has, so far, received comparatively little attention: transnational access to justice. It presents a typology of transnational access-to-justice problems, explains why those problems are distinctive and important to understand and address, and proposes an agenda for further transnational access-to-justice research.

Part I defines the concept of transnational access to justice. Part II develops a typology of transnational access-to-justice problems, including different types of transnational access-to-justice gaps and conflicts. It shows that although some ...


Movement Law, Amna A. Akbar, Sameer M. Ashar, Jocelyn Simonson Jan 2021

Movement Law, Amna A. Akbar, Sameer M. Ashar, Jocelyn Simonson

Faculty Scholarship

In this Article we make the case for “movement law,” an approach to legal scholarship grounded in solidarity, accountability, and engagement with grassroots organizing and left social movements. In contrast to law and social movements—a field of study that unpacks the relationship between lawyers, legal process, and social change—movement law is a methodology for scholars across substantive areas of expertise to draw on and work alongside social movements. We identify seeds for this method in the work of a growing number of scholars that are organically developing methods for movement law. We make the case that it is ...


Institutional Design For Access To Justice, Emily Taylor Poppe Jan 2021

Institutional Design For Access To Justice, Emily Taylor Poppe

Faculty Scholarship

Decades of empirical research have confirmed the prevalence of troublesome situations involving civil legal issues in everyday life. Although these problems can be associated with serious financial and social harm, they rarely involve recourse to lawyers or formal legal institutions. Contemporary scholars and practitioners increasingly integrate this reality into the definition of access to justice. They understand access to justice to be concerned with equality in the ability of individuals to achieve just resolutions to the problems they experience, regardless of whether they pursue formal legal action. To achieve this goal, an emerging international set of best practices calls for ...


Introduction — Modern Legal Realism: Paving The Way For Theoretically-Informed Empirical Research In The Legal Academy, Shauhin A. Talesh, Elizabeth Mertz, Heinz Klug Jan 2021

Introduction — Modern Legal Realism: Paving The Way For Theoretically-Informed Empirical Research In The Legal Academy, Shauhin A. Talesh, Elizabeth Mertz, Heinz Klug

Faculty Scholarship

This introductory chapter shows the distinctive qualities of New Legal Realism (NLR), captures where it stands around its fifteenth anniversary, and explains the goal of the larger book. In doing so, we demonstrate NLR’s fruitful continuation of the legal realist adventure as it reaches beyond historical and national boundaries to form new international conversations, based heavily on law-and-society networks and traditions. In addition, we provide a contrast to Empirical Legal Studies, because the NLR project clearly visible in this volume does not just use quantitative methods to study lawyers and legal institutions as they have been traditionally viewed. Instead ...


Constructing The Content And Meaning Of Law And Compliance, Shauhin A. Talesh Jan 2021

Constructing The Content And Meaning Of Law And Compliance, Shauhin A. Talesh

Faculty Scholarship

This chapter argues that organizational compliance is best illustrated not by a compliance versus noncompliance dichotomy, but by a processual model in which organizations construct the meaning of both compliance and law. I argue organizations must be understood as social actors that are influenced by widely institutionalized beliefs about legality, morality, politics, and rationality. I review the empirical research in this vein and show how institutionalized conceptions of law and compliance first become widely accepted within the business community and eventually come to be seen as rational and legitimate by public legal actors and institutions and thus influence the very ...


Planet Of The Insurers: How Insurers Shape And Influence Law And Impact Access To Justice, Shauhin A. Talesh Jan 2021

Planet Of The Insurers: How Insurers Shape And Influence Law And Impact Access To Justice, Shauhin A. Talesh

Faculty Scholarship

Applying a New Legal Realist framework, this chapter uses the insurance field as a pathway for exploring how insurance institutions shape law in formal and informal settings. Consistent with new institutional organizational sociology studies that highlight how organizations influence the meaning of compliance, I show how the insurance field, largely through a lens anchored around risk, filters and mediates what law means through a risk-based logic. I begin by explaining how insurance exerts a regulatory force over its subjects and acts as a form of governance beyond the state. Next, I show how the presence of liability insurance often shapes ...


The Willful Blindness Doctrine: Justifiable In Principle, Problematic In Practice, Kenneth W. Simons Jan 2021

The Willful Blindness Doctrine: Justifiable In Principle, Problematic In Practice, Kenneth W. Simons

Faculty Scholarship

This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law.

Under the willful blindness doctrine widely employed in federal criminal prosecutions, courts expand a statutory “knowledge” or “willfulness” requirement to encompass “willful blindness” or “deliberate indifference.” The WB doctrine bridges the gap between recklessness and knowledge, treating a subcategory of recklessness cases as if they were knowledge cases—namely, those cases in which defendant is not merely aware of a substantial risk that the incriminating fact exists, but also deliberately avoided ...


Banking On Democracy, Mehrsa Baradaran May 2020

Banking On Democracy, Mehrsa Baradaran

Faculty Scholarship

The financial system is unequal and exclusionary even as it is supported, funded, and subsidized by public institutions. This is not just a flaw in the financial sector; it is a foundational problem for democracy. Across the financial industry, entrepreneurs, regulators, media, and scholars promote the goal of “financial inclusion” or “access to credit.” Facebook’s Libra, Bitcoin, and fintech providers like Square, PayPal, Venmo and thousands of other new products or startup companies are launched with the stated aim of increasing financial inclusion. These private companies are joined by the Congress, non-profits, and financial regulators with programs and laws ...


Language, Culture, And The Culture Of Language International Jd Students In U.S. Law Schools, Swethaa Ballakrishnen, Carole Silver Apr 2020

Language, Culture, And The Culture Of Language International Jd Students In U.S. Law Schools, Swethaa Ballakrishnen, Carole Silver

Faculty Scholarship

Although international students have been routinely admitted to U.S. law schools over the last few decades, there is little known about this demographic outside of specific programs aimed to admit these students like the LLM or the SJD. This Chapter extends this literature to focus on a rising trend of students within more the “mainstream” law school program, the JD. Our past research shows that the proportion of JDs who are international students has increased over the last decade, with the increase being most notable at elite law schools. Still, little is known about the experience of these students ...


Surprised By The Inevitable: A National Survey Of Estate Planning Utilization, Emily Taylor Poppe Jan 2020

Surprised By The Inevitable: A National Survey Of Estate Planning Utilization, Emily Taylor Poppe

Faculty Scholarship

The laws governing the transfer of property at death — the laws of succession — give individuals broad freedom to control the administration and distribution of their property. To exercise this freedom, however, individuals must take affirmative steps during life, by executing a will, a revocable trust, or other ownership or transfer arrangements. Doing so can provide economic, social, and emotional benefits to both the decedent and his or her survivors, and represents a form of self determination. Yet many individuals fail to undertake any estate planning, leaving it to the state to determine how their property is distributed without regard for ...


Introductory Note To Animal Science Products Inc. V. Hebei Welcome Pharmaceutical Co. Ltd. (United States Supreme Court), Christopher A. Whytock Jan 2020

Introductory Note To Animal Science Products Inc. V. Hebei Welcome Pharmaceutical Co. Ltd. (United States Supreme Court), Christopher A. Whytock

Faculty Scholarship

This brief case note provides an overview and critical assessment of the U.S. Supreme Court’s decision in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., 138 S.Ct. 1865 (2018), which held that when determining the meaning of foreign law, “[a] federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements.”


A New Chinese Economic Law Order?, Gregory C. Shaffer, Henry Gao Jan 2020

A New Chinese Economic Law Order?, Gregory C. Shaffer, Henry Gao

Faculty Scholarship

China is incrementally developing a new, decentralized model of trade governance through a web of finance, trade, and investment initiatives involving memorandum of understandings, contracts, and trade and investment treaties. In this way, China could create a vast, Sino-centric, regional order in which the Chinese state plays a nodal role. This model mirrors China’s internal development strategy. But now Chinese state-owned and private enterprises are internationalized and integrated within Sino-centric global production chains. It is a hub and spokes model, with China at the hub. In this paper, we first examine China’s export of its infrastructure-based development model ...


The Concept Of A Global Legal System, Christopher A. Whytock Jan 2020

The Concept Of A Global Legal System, Christopher A. Whytock

Faculty Scholarship

An enduring contribution of Philip Jessup’s Transnational Law, published in 1956, is his critique of “international law” and his case for a functionalist concept of “transnational law” defined as rules—international, national or private—that offer solutions to transnational problems. Extending Jessup’s argument, this chapter critiques the concept of the “international legal system,” proposes an alternative concept of the “global legal system,” and offers an analytical framework for understanding that system. The global legal system consists of not only rules, but also courts and other institutions, that provide legal solutions to transnational problems. These institutions are national, international ...


New Legal Realism Goes To Law School: Integrating Social Science In Law And Legal Education, Emily Taylor Poppe Jan 2020

New Legal Realism Goes To Law School: Integrating Social Science In Law And Legal Education, Emily Taylor Poppe

Faculty Scholarship

Legal Realism was both a stunning success and a dismal failure; while it pierced the veil of legal formalism, it failed in its attempt to integrate law and social science. New Legal Realism seeks to address the failings of Legal Realism, by directing greater attention to the challenges of incorporating social scientific insights into legal discourse. In this chapter, I argue that to accomplish the integration of social science and law, legal education must be reoriented to further the goals of New Legal Realism. In particular, I consider how the formal curriculum, hidden curriculum, and law school pedagogy might be ...


(Un)Changing Rates Of Pro Se Litigation In Federal Courts, Mark Gough, Emily Taylor Poppe Jan 2020

(Un)Changing Rates Of Pro Se Litigation In Federal Courts, Mark Gough, Emily Taylor Poppe

Faculty Scholarship

There is widespread concern among scholars, court actors, and policymakers that the number of pro se litigants is increasing. However, we have little empirical evidence of the scope of pro se litigation, especially in the federal court system. Using data from the Administrative Office of the U.S. Courts on all civil case filings since 1999, we investigate the prevalence and rate of pro se litigation in federal district courts. We find no evidence of a dramatic rise in pro se litigation, but document substantial variation in rates of pro se litigation by type of case and circuit of filing ...


Law Students And Cell Phone Use: Results Of A Six-School Survey, Robert M. Jarvis, Cindy Thomas Archer, Linda Galler, Hugh D. Spitzer, Jodi Wilson, Mark E. Wojcik Jan 2020

Law Students And Cell Phone Use: Results Of A Six-School Survey, Robert M. Jarvis, Cindy Thomas Archer, Linda Galler, Hugh D. Spitzer, Jodi Wilson, Mark E. Wojcik

Faculty Scholarship

The sight of a law student using his or her cell phone now is so common that law professors do not give it a second though. But what, exactly, is the student doing? Texting with friends? Shopping? Watching a movie? To try to find out, during the Fall 2019 semester we asked our six diverse law schools to take an online survey consisting of eighteen questions. To our knowledge, this is the first phone survey of law students. This paper presents the results of the survey, exploring applications used (text, social media, email, etc.) and differences by audience (e.g ...


Critical Theory And Clinical Stance, Wendy A. Bach, Sameer M. Ashar Sep 2019

Critical Theory And Clinical Stance, Wendy A. Bach, Sameer M. Ashar

Faculty Scholarship

Clinicians, unlike their peers in the legal academy, are embedded in their clients’ experiences of the legal system. Because of their location in the academy, “they have the potential to transform the study of law into the study of a culture that deploys law for various purposes,” in the words of Phyllis Goldfarb. In this short essay, we highlight a thread of clinical scholarship which we identify as growing from clinicians’ unique and embedded stance. We seek to convince, using a few examples of clinical scholarship, that our collective critical stance has yielded, over the last several decades, a growing ...


A New Minority? International Jd Students In Us Law Schools, Swethaa Ballakrishnen, Carole Silver Aug 2019

A New Minority? International Jd Students In Us Law Schools, Swethaa Ballakrishnen, Carole Silver

Faculty Scholarship

This Article reveals the significance of a new and growing minority group within US law schools - international students in the Juris Doctor (JD) program. While international students have received some attention in legal education scholarship, it mostly has been focused on their participation in the context of programs specially designed for this demographic (e.g. post-graduate programs like the LLM and SJD). Drawing from interview data with fifty-eight international JD students across seventeen graduating US law schools, our research reveals the rising importance of international students as actors within a more mainstream institutional context. Particularly, in examining the ways these ...


2016-2019 Cumulative Supplement To Donald Earl Childress Iii, Michael D. Ramsey & Christopher A. Whytock, Transnational Law And Practice (2015), Donald Earl Childress Iii, Michael D. Ramsey, Christopher A. Whytock Jul 2019

2016-2019 Cumulative Supplement To Donald Earl Childress Iii, Michael D. Ramsey & Christopher A. Whytock, Transnational Law And Practice (2015), Donald Earl Childress Iii, Michael D. Ramsey, Christopher A. Whytock

Faculty Scholarship

This is the Fall 2019 Cumulative Supplement for Donald Earl Childress III, Michael D. Ramsey & Christopher Whytock, Transnational Law and Practice (2015). Highlights include excerpts of the Supreme Court’s decisions in RJR Nabisco Inc. v. European Community and WesternGeco LLC v. ION Geophysical Corporation, involving extraterritorial application of the RICO Act and the Patent Act; new developments regarding Alien Tort Statute litigation including the Supreme Court’s decision in Jesner v. Arab Bank PLC, involving corporate liability for international human rights violations; new Supreme Court and appellate court decisions in the areas of personal jurisdiction, including Bristol-Meyers Squibb Company v. Superior Court of California; discussion of pending litigation at the International Court of Justice; references to new Restatements issued by the American Law Institute; discussion of new Supreme Court and lower court developments in the law of foreign sovereign immunity ...


Cnn Coverage Scotus Decline To Expedite Daca Jun 2019

Cnn Coverage Scotus Decline To Expedite Daca

Litigation

No abstract provided.


Justices Reject Expedite Daca Jun 2019

Justices Reject Expedite Daca

Litigation

No abstract provided.


Jim Crow Credit, Mehrsa Baradaran May 2019

Jim Crow Credit, Mehrsa Baradaran

Faculty Scholarship

The New Deal created a separate and unequal credit market—high-interest, non-bank, installment lenders in black ghettos and low-cost, securitized, and revolving credit card market in the white suburbs. Organized protest against this racialized inequality was an essential but forgotten part of the civil rights movement. After protests and riots drew attention to the reality that the poor were paying more for essential consumer products than the wealthy, the nation’s policymakers began to pay attention. Congress held hearings and agencies, and academics issued reports examining the economic situation. These hearings led to new federal agencies and programs, executive actions ...


Dha V Casa De Maryland Motion To Expedite May 2019

Dha V Casa De Maryland Motion To Expedite

Litigation

No abstract provided.


Daca, Government Lawyers, And The Public Interest, Sameer M. Ashar, Stephen Lee Apr 2019

Daca, Government Lawyers, And The Public Interest, Sameer M. Ashar, Stephen Lee

Faculty Scholarship

This article examines why the U.S. Department of Homeland Security moved away from a prosecutorial-discretion model to the Deferred Action for Childhood Arrivals program (DACA) to screen immigrants out of the removal pipeline. This Article adds an empirical dimension to the extant conversation on that shift. Drawing from seventeen interviews with political appointees within the executive branch during the Obama administration, as well as documents obtained under the Freedom of Information Act, this Article makes two points. First, our findings tend to confirm a “centralization” thesis. Our interview subjects — political appointees within the Obama White House and DHS — tended ...


Just Like Global Firms: Unintended Gender Parity And Speculative Isomorphism In India's Elite Professions, Swethaa Ballakrishnen Mar 2019

Just Like Global Firms: Unintended Gender Parity And Speculative Isomorphism In India's Elite Professions, Swethaa Ballakrishnen

Faculty Scholarship

Against most male-dominated accounts of professional work, elite law firms in India pose a puzzling exception: women make up about half of these firms, even at senior levels of partnership. Using in-depth interviews with over 130 professionals in India’s elite litigation, transactional law and consulting firms, this research suggests that elite law firms—as new, local organizations—aggressively differentiate themselves from their more traditional peers to establish organizational legitimacy. At the same time, as institutions trying to mimic global firms without actual scripts for doing so, these firms engage in a form of “speculative isomorphism” through which they signal ...


Access To Power, Sameer M. Ashar, Annie Lai Jan 2019

Access To Power, Sameer M. Ashar, Annie Lai

Faculty Scholarship

The traditional approaches to “access to justice” obscure the current distribution of economic, social, and political power, and how that distribution favors those who have power and burdens those who do not. Consequently, the traditional approaches foreclose possibilities for a truly just society. In the law clinic we led together for five years, we developed models of lawyering with our students and community partners focused on how lawyers can contribute to the redistribution of power in society from those who accumulate and deploy it to those who are deprived of it.


The Future Is ̶B̶R̶I̶G̶H̶T̶ Complicated: Ai, Apps & Access To Justice, Emily Taylor Poppe Jan 2019

The Future Is ̶B̶R̶I̶G̶H̶T̶ Complicated: Ai, Apps & Access To Justice, Emily Taylor Poppe

Faculty Scholarship

As advances in legal technology reshape boundaries between lawyers and clients, some scholars foresee increased access to civil justice. Do-It-Yourself (DIY) estate planning through the use of online forms is frequently offered as evidence of this phenomenon. In this article, I take seriously this prediction, assessing the extent to which technology is likely to increase access to estate planning. In doing so, I identify several themes that complicate predictions for legal technology’s potential to increase access to justice. First, I highlight the potential of legal technology to reproduce, rather than ameliorate, existing social inequalities. Second, I note the challenges ...


Access To Safety And Justice: Service Of Process In Domestic Violence Cases, Jane K. Stoever Jan 2019

Access To Safety And Justice: Service Of Process In Domestic Violence Cases, Jane K. Stoever

Faculty Scholarship

Every day, in courthouses across America, numerous domestic violence protection order cases are dismissed for lack of personal service, even though law enforcement is tasked under federal law with effectuating service. Service of process presents substantial access to justice and access to safety issues for domestic violence survivors who seek legal protection, as nearly 40% of petitioners for civil protection orders are unable to achieve personal service on those against whom they seek protection. Research shows that the civil protection order remedy is the most effective legal means for intervening in and eliminating abuse, yet petitioners who fail to achieve ...


Reentry Services For The Removed, Katie Tinto Jan 2019

Reentry Services For The Removed, Katie Tinto

Faculty Scholarship

Response to Amy F. Kimpel, Coordinating Community Reintegration Services for “Deportable Alien” Defendants: A Moral and Financial Imperative.

Each year, thousands of individuals are released from prisons in the United States. Reentry services—services aimed at helping an individual reintegrate into the community upon his or her release—have long been neglected as an afterthought of the criminal justice system. However, in recent years, prison officials, criminal justice reformers, and politicians alike have increasingly recognized the critical role reentry services play in ensuring individuals do not reoffend once released from prison.

In her article, Coordinating Community Reintegration Services for “Deportable ...


Why Consumer Defendants Lump It, Emily Taylor Poppe Jan 2019

Why Consumer Defendants Lump It, Emily Taylor Poppe

Faculty Scholarship

Contrary to popular claims about Americans’ litigiousness, one of the most common responses to civil legal problems is lumping it: choosing to do nothing even when there is legal action that might be taken. A substantial body of socio-legal scholarship investigates this phenomenon, but has focused almost exclusively on individuals’ willingness and ability to initiate legal actions as plaintiffs. Similarly, research on consumers’ participation in civil litigation is primarily concerned with the actions of consumer plaintiffs. Yet individuals also are named as defendants in civil actions, including many who are sued for claims arising out of consumer transactions. The majority ...