Law Commons^™

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UC Irvine Law Review

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Subsidizing Economic Segregation Through The State And Local Tax Deduction, Gladriel Shobe

UC Irvine Law Review

Economic segregation has increased over the past half-century. The trend of rich localities getting richer while poor localities get poorer is particularly concerning because it limits upward mobility and perpetuates intergenerational income inequality. This Article makes the novel argument that the state and local tax deduction subsidizes economic segregation. It arrives at that conclusion by showing that the “local tax deduction” provides a greater subsidy, per capita, for wealthy, economically segregated localities because only those localities have a critical mass of wealthy taxpayers who claim the deduction. This allows wealthy localities, but not poor localities, to provide services at a …

The Problematic Use Of The Kill Zone Theory, Kaitlin R. O’Donnell

UC Irvine Law Review

The kill zone theory is a legal doctrine that does not exist in statute but has been used in jury instructions to aid in securing convictions for attempted murder charges. As a result of the kill zone theory, individuals in California have received lengthier sentences and, in some cases, have been convicted of crimes that fail to meet the requisite specific intent for attempted murder cases. The kill zone theory has no purpose in California law but to make the path to conviction easier and to put defendants in jail for longer. The kill zone theory is an unnecessary tool …

Labor Redemption In Work Law, Andrew Elmore

UC Irvine Law Review

People with criminal records must find and keep work to reintegrate into society. But private employers often categorically exclude candidates with criminal record histories, especially if the candidate is African American or Latinx. The conventional wisdom is that workplace laws offer little to address this problem. People with criminal records are not a protected class under Title VII, and many employers fear that hiring people with criminal records invites negligent hiring liability. Ban the Box privacy laws delay but may not deter overbroad criminal background checks.

This Article challenges this standard account by shifting focus to the state in imposing …

Dodging Public Nuisance, Albert C. Lin

UC Irvine Law Review

Public nuisance claims against fossil fuel companies, drug companies, lead paint manufacturers, and other industries have raised the specter of onerous abatement orders and damage awards. While courts sometimes have rejected these industry-oriented public nuisance claims on their substantive merits, in climate change cases federal district courts have turned to doctrines of avoidance—including jurisdictional defenses and justiciability doctrines—to dismiss cases and avoid reaching the substantive merits. This dodging of public nuisance, often supported by questionable legal analysis, not only undermines the functions of tort law, but also cuts short important discussions between the judiciary, the political branches, and the broader …

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UC Irvine Law Review

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Mission Statement

UC Irvine Law Review

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Table Of Contents

UC Irvine Law Review

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Predictable Punishments, Brian Galle, Murat Mungan

UC Irvine Law Review

Economic analyses of both crime and regulation writ large suggest that the subjective cost or value of incentives is critical to their effectiveness. But reliable information about subjective valuation is scarce, as those who are punished have little reason to report honestly. Modern “big data” techniques promise to overcome this information shortfall but perhaps at the cost of individual privacy and the autonomy that privacy’s shield provides.

This Article argues that regulators can and should instead rely on methods that remain accurate even in the face of limited information. Building on a formal model we present elsewhere, we show that …

Unmasking Uncle Sam: A Legal Test For Defining And Identifying State Media, Jennifer M. Grygiel, Weston R. Sager

UC Irvine Law Review

In December 2018, the Chair of the House Foreign Affairs Committee published a report detailing how the U.S. Agency for Global Media, the central federal state media agency, illegally targeted social media ads at Americans at least 860 times from 2016 to 2018. The U.S. Agency for Global Media and other U.S. state media agencies have enormous resources, and if left unchecked, could unduly influence public opinion, threaten the free and independent press, and subvert democratic accountability. To address this growing concern, this Article proposes a new, comprehensive legal test for defining and identifying state media that incorporates existing approaches …

Against Fiduciary Utopianism: The Regulation Of Physician Conflicts Of Interest And Standards Of Care, Sam F. Halabi

UC Irvine Law Review

This Article critically examines calls by scholars, legislators, and regulators advocating the imposition of fiduciary duties upon a broad range of actors including judges, jurors, agencies, parents, friends, and even entire countries. The Article examines the physician-patient relationship—an archetypal and frequently cited relationship in which fiduciary duties, administered by courts, are asserted to work well. It argues that some of the most significant problems fiduciary duties are used to address like asymmetry of information, conflicts of interest, and professional conduct have not only been handled badly by courts, but have actually found more effective resolution through legislative fact-finding, acknowledgment of …

The Renewed Need For Guidance Addressing Partnership 754 Election Revocations, Dion S. Toledo

UC Irvine Law Review

The section 754 election of the Internal Revenue Code allows partnerships to make basis adjustments to avoid potentials for double taxation that can arise following transfers of partnership interests and distributions of partnership property. Once made, a 754 election applies to all future tax years and is revocable only with the consent of the Internal Revenue Service (Service). One subsection of the Treasury Regulations addresses when the Service might approve or deny a partnership’s request to revoke a 754 election. Despite the process contemplated in this regulation, until recently, partnerships could default out of a 754 election without Service approval …

Mission Statement

UC Irvine Law Review

No abstract provided.

Table Of Contents

UC Irvine Law Review

No abstract provided.

Masthead

UC Irvine Law Review

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State Regulation Of Federal Contractors: Three Puzzles Of Procurement Preemption, David S. Rubenstein

UC Irvine Law Review

This Article unpacks three doctrinal puzzles at the intersection of federalism and federal contracting, using student loan law as its anchoring case study. Currently, more than $1 trillion of federal student loan debt is serviced by private financial institutions under contract with the Department of Education. These loan servicers have allegedly engaged in systemic consumer abuses but are seldom held accountable by the federal government. To bridge the accountability gap, several states have recently passed “Student Borrower Bills of Rights.” These state laws include provisions to regulate the student loan servicing industry, including the Department’s federal contractors. States undoubtedly have …

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UC Irvine Law Review

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The Forgotten Stewards Of Higher Education Quality, Matthew A. Bruckner

UC Irvine Law Review

A “triad” of regulators is supposed to ensure that student loan borrowers are not harmed by low-value institutions of higher education, including exploitative profiteers operating fly-by-night or predatory institutions of higher education. The triad has failed. Millions of students have borrowed billions of federal student loan dollars that they won’t ever repay, causing borrowers to suffer needless economic harm and psychological anguish. But these harms were, are, and remain mostly preventable. This Article appears to be the first law review article to consider the states’ role in policing institutional quality and ensuring that student borrowers are not preyed upon by …

Forgotten Borrowers: Protecting Private Student Loan Borrowers Through State Law, Prentiss Cox, Judith Fox, Stacey Tutt

UC Irvine Law Review

Private student loan borrowers arguably have the fewest protections of any users of credit in the United States. In a scarcely debated amendment to federal bankruptcy law in 2005, private student lenders gained the same protections against discharge previously afforded to federal student lenders. Yet private student loan borrowers received none of the rights available to federal student loan borrowers. These include income-driven repayment, relief from repayment on disability, loan discharge for fraud or closed schools, and public service loan forgiveness. Private student loan borrowers thus have neither the bankruptcy protections afforded to nonstudent loan debtors nor the repayment and …

Relief For Student Loan Borrowers Victimized By “Relief” Companies Masquerading As Legitimate Help, Creola Johnson

UC Irvine Law Review

Masquerading as legitimate help are companies that target forty-four million borrowers owing over $1.6 trillion in student loan debt. “Relief” companies purport to help borrowers struggling to repay student loans but, in fact, inflict irreversible financial harm by charging borrowers unlawful fees. Often pretending to be affiliated with the U.S. Department of Education (Education Department), relief companies falsely claim they can enroll borrowers into income-driven repayment plans and forgiveness programs. Exploiting twenty-first century technologies, relief companies can now easily reach millions of borrowers by, for example, making robocalls to cellphones, posting phony five-star reviews on social media, and requiring borrowers …

Illusory Due Process: The Broken Student Loan Hearing System, Deanne Loonin

UC Irvine Law Review

Student loan collection hearings should be the primary gateway to relief for borrowers in default, but the system is profoundly broken. The author presents case examples, available data, and responses from industry surveys to describe how student loan collection hearings offer no more than an illusion of due process. The later sections present reform proposals to improve the existing hearing system, including eliminating private contractor outsourcing and increasing government accountability and oversight. Recognizing that it is counterproductive to try to fix the hearing process without tackling systemic issues, the final section includes a summary of broad reform measures aimed at …

The Contract State, Program Failure, And Congressional Intent: The Case Of The Public Service Loan Forgiveness Program, Alan White

UC Irvine Law Review

If a future administration were to adopt sweeping student loan forgiveness, the contract state may stand in the way of actual debt cancellation. In the likely event that Congress were to adopt something short of universal and immediate student loan forgiveness, the Public Service Loan Forgiveness (PSLF) experience teaches us that the federal bureaucracy is unlikely to deliver fully on the legislative promise. In the first two years of the PSLF program, nearly 100,000 student loan borrowers have applied, and the Department of Education’s contractor has denied roughly 99,000 of those applications. The Department blames Congress for an unduly complex …

Mission Statement

UC Irvine Law Review

No abstract provided.

Cover

UC Irvine Law Review

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Table Of Contents

UC Irvine Law Review

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Privatized Cybersecurity Law, Ido Kilovaty

UC Irvine Law Review

Tech companies have gradually and informally assumed the role of international lawmakers on global cybersecurity issues. But while it might seem as if the international community and Internet users are the direct beneficiaries of private tech industries’ involvement in making law, there are many questions about this endeavor that require a thorough examination. The end goal and risks associated with such ventures are largely obscure and unexplored.

This Article provides an analysis of how tech companies are effectively becoming regulators on global cybersecurity, based on states’ inability to overcome geopolitical divides on how cyberspace ought to be regulated globally. This …

Acute Poverty: The Fatal Flaw In U.S. Anti-Poverty Law, David A. Super

UC Irvine Law Review

Debates over inequality have largely ignored the largest body of people living in poverty. Although anti-poverty policymaking focuses overwhelmingly on the chronic poor, a far larger number of people suffer occasional acute bouts of poverty. The causes of the acute poor’s problems, and their needs, differ significantly from those of the chronic poor. Even short spells of poverty can cause serious, physical, psychological, and material harm as well as impairment in their ability to return to their former circumstances.

Demographically, the acute poor resemble the general population far more than the chronic poor, yet they receive little sympathy: politicians may …

Meta-Evidence And Preliminary Injunctions, Maggie Wittlin

UC Irvine Law Review

The decision to issue a preliminary injunction is enormously consequential; it has been likened to “judgment and execution before trial.” Yet, courts regularly say that our primary tool for promoting truth seeking at trial—the Federal Rules of Evidence—does not apply at preliminary injunction hearings. Judges frequently consider inadmissible evidence to make what may be the most important ruling in the case. This Article critically examines this widespread evidentiary practice.

In critiquing courts’ justifications for abandoning the Rules in the preliminary injunction context, this Article introduces a new concept: “meta-evidence.” Meta-evidence is evidence of what evidence will be presented at trial. …

Civil Liability For Cyberbullying, Ronen Perry

UC Irvine Law Review

No abstract provided.

Masthead

UC Irvine Law Review

No abstract provided.