Study Hall

Selected Faculty Scholarship

Expertise Coveted, Amplified, and Recognized

Faculty Honors:

Whether it’s a top organization appointing them to leadership positions, their needle-moving scholarship that sets the parameters for new policy reform efforts, or major awards honoring their work as the best in its field, Berkeley Law faculty members continue to dazzle.

Below are 10 recent examples that showcase the range, heft, and impact of their meaningful work.

illustration of multiple boats in water surrounded by mountains

Illustration by Joshua Rush

Triple Crown Winner: Professor Sonia Katyal won a Dukeminier Award — again — for her UCLA Law Review article “The Gender Panopticon: AI, Gender, and Design Justice.” She’s the first three-time recipient of the annual award, which honors the best papers on sexual orientation and gender identity law. Her article argues that the dynamic between artificial intelligence and gender is far more complicated than current laws suggest, with a particular impact on LGBTQ+ communities.

Serving Civil Rights: Professor Jonathan D. Glater was appointed to the California Civil Rights Council, which issues regulations that implement the state’s civil rights laws, conducts inquiries, and holds hearings. Glater, who joined Berkeley Law’s faculty last year, teaches Criminal Law, Education Law and Policy, and Law in Media. A leading scholarly voice on the implications of rising student debt, he was a reporter for The New York Times from 2000 to 2009.

A Top Tech Policy Voice: Professor and Berkeley Center for Law & Technology Co-Director Deirdre Mulligan was named Principal Deputy U.S. Chief Technology Officer for the White House Office of Science and Technology Policy, which she joined in February. A leader in shaping U.S. policy in the field, Mulligan, former director of our Samuelson Law, Technology & Public Policy Clinic, also helps the National AI Initiative Office craft strategic planning on artificial intelligence.

Setting a Seminal Framework: A landmark 2010 paper by Professor and UC Berkeley Vice Provost for the Faculty Victoria Plaut, “Diversity Science: Why and How Difference Makes a Difference,” is the focus of a special issue of the American Psychological Association journal Cultural Diversity and Ethnic Minority Psychology. Researchers reflect on Plaut’s paper — which lays out some central elements of diversity, equity, and inclusion sciences — and where the field should go in the future.

Astute Analysis Courted: Professor Andrea Roth’s 2019 California Law Review article “Spit and Acquit: Prosecutors as Surveillance Entrepreneurs” was integral to a recent California Court of Appeal decision reversing the dismissal of a taxpayer lawsuit against the Orange County District Attorney’s Office based on the county’s “spit and acquit” DNA database, thus allowing the case to proceed to discovery. The complaint and appellate briefs drew heavily from Roth’s brief, and she was an amicus in the case on appeal.

Identifying Toxic Consumer Products: Environmental Law Clinic Director Claudia Polsky ’96 and four scientist co-authors published an eye-opening piece in the journal Environmental Science & Technology on the toxic indoor air pollution caused by chemical releases from consumer products. The article got noticed by outlets including The New York Times, the Guardian, and CBS News, and California’s Department of Toxic Substances Control has asked to meet with the authors to discuss their regulatory proposals.

Judged Well by His Peers: Jeremy Fogel, executive director of our Berkeley Judicial Institute, received the American College of Trial Lawyers’ Samuel E. Gates Litigation Award, given to a lawyer who epitomizes ethical conduct, integrity, collegiality, and professionalism. A former state and federal judge who led the Federal Judicial Center for seven years, Fogel guides the institute’s work promoting a resilient, independent judiciary and connecting it to academics.

FINE-TUNING CORPORATE FINANCE: Professor Andrew C. Baker and two co-authors won the prestigious Jensen Prize for best paper on corporate finance and organizations. Studying a method used often to assess the impact of policy changes in the field — explaining when and how it is biased — they say such biases will likely be relevant for research settings in finance, accounting, and law, and describe three alternative estimators to address these biases, including their differences and tradeoffs.

Working Toward Equity: Professors john a. powell and Khiara M. Bridges were named to the Yerba Buena Center for the Arts’ annual list of 100 leaders, activists, and artists “committed to building regenerative and equitable communities.” A renowned civil rights and civil liberties expert, powell is the director of UC Berkeley’s Othering & Belonging Institute. Bridges’ prolific scholarship, published in leading law reviews, probes the intersection of race, class, and reproductive rights.

Law & Society Luminary: Professor Christopher Tomlins was awarded the Law & Society Association’s 2023 Harry J. Kalven Jr. Prize, which honors empirical scholarship that contributed most effectively to advancing research in the field. A renowned legal historian, Tomlins joins a long list of faculty from our Jurisprudence and Social Policy Program to win the award, including Frank Zimring, Lauren Edelman ’86, Philip Selznick, Robert Kagan, and Malcolm Feeley.

Probing Tough Questions, Breaking New Ground

Faculty Papers:

Sometimes, their work examines an old conundrum in a novel way. Other times, it unearths an entirely new revelation, dilemma, or contradiction. Often, it proposes concrete solutions to a vexing problem. Berkeley Law professors regularly confront key issues head-on, using careful research, empirical evidence, and savvy analysis to illuminate the importance of those issues — and a path forward to help solve them.

Here are a dozen recent articles that exemplify the vast scholarship our faculty produce on a sweeping range of subjects.

CATHERINE ALBISTON
WITH SHELLEY CORRELL

Law’s Normative Influence on Gender Schemas: An Experimental Study on Counteracting Workplace Bias Against Mothers and Caregivers

Law & Social Inquiry

This experimental study shows that when the law is not salient, participants rate employees who take family leave and mothers who don’t take it as less promotable, competent, committed, and congenial than other identical workers, consistent with gender stereotypes. By contrast, when participants review family leave laws before evaluating employees, they treat these workers no worse than other workers, suggesting how the law’s expressive effects can reduce inequality.

ABHAY ANEJA
WITH GUO XU

Strengthening State Capacity: Civil Service Reform and Public Sector Performance During the Gilded Age

National Bureau of Economic Research

Studying newly digitized post office records in over 2,300 cities from 1875 to 1905, the authors show how the 1883 Pendleton Act — which shielded bureaucrats from political interference — strengthened state capacity by reducing postal delivery errors and making postal workers more productive. They also find that by separating politics from public administration, civil service reform weakened political parties, which were vital for distributing patronage in the 19th century.

ALAN AUERBACH
WITH LAURENCE J. KOTLIKOFF & DARRYL KOEHLER

U.S. Inequality and Fiscal Progressivity: An Intragenerational Accounting

Journal of Political Economy

The authors’ study of spending power inequality within age cohorts surfaced many key findings, including: Wealth inequality overstates spending power inequality, current spending power inequality differs from lifetime spending power because of credit constraints and other factors, the U.S. fiscal system is highly progressive once cohorts are old enough to have highly dispersed wealth, and current-year net tax rates substantially understate fiscal progressivity.

ANDREW BRADT
WITH LYNN A. BAKER

MDL Myths

Texas Law Review

With multidistrict litigation (MDL) an increasingly vital and controversial part of the legal landscape, the authors aim to debunk myths fueling criticism of it that are close to becoming conventional wisdom and the basis for policy changes. They say the myths include that MDL was intended only to coordinate discovery, denies plaintiffs due process and court access, isn’t an appropriate forum for settlements, and doesn’t foster plaintiffs’ trust in their lawyers.

SEAN FARHANG

Supreme Court Oversight of the Federal Rules: A Principal-Agent Problem?

DePaul Law Review

While the Supreme Court’s conservative majority aims to deter private enforcement, Farhang sees that effort mitigated in lower courts, where ideology has less impact on rulings. He explains how the Federal Rules of Civil Procedure’s institutional features and implementation in lower courts buoy private enforcement, and why recent statutory changes within pleading, discovery, and class actions are not creating the level of anti-plaintiff effects that many had anticipated.

REBECCA GOLDSTEIN

Inequality in the Provision of Police Services: Evidence from Residential Burglary Investigations

Journal of Law & Economics

Studying more than 2,500 residential burglaries in Tucson, Goldstein finds that the demographics of victims or officers are less a predictor of police investigation thoroughness than whether the burglary involved forced entry — because such cases yield more evidence and are thus easier to solve. The likelihood of forced entry does differ greatly by neighborhood, however, meaning that the seemingly neutral decision to maximize clearance rates has unequal consequences, and disadvantages poor neighborhoods where homes are less likely to be well-secured.

ORIN KERR

University of Pennsylvania Law Review

Almost all online activity is governed by the terms of service, often giving internet providers broad rights to address potential account misuse. Recently, many courts are treating terms of service like a rights contract, eroding or even eliminating constitutional rights in internet accounts. Kerr says these courts are wrong, explaining that while such terms can define relationships between private parties, private contracts can’t define Fourth Amendment rights

TEJAS N. NARECHANIA
WITH NICK MERRILL

Inside the Internet

Duke Law Journal Online

Narechania’s research undermines the long-held belief that competition rules the internet’s core, a belief which has shaped regulatory approaches to questions of network security and competition policy among internet service providers. He and his co-author say the markets for such providers have consolidated, and their findings raise troubling concerns across matters of network reliability, online speech, and consumer choice, among others. The authors call for regulation to increase transparency and fairness for internet users.

MANISHA PADI

Markets and Mandates: Retirement in Chile and the United States

Boston University Law Review

Padi’s international case study shows that the strict separation between lightly regulated private markets and tightly restricted public-benefits programs for U.S. retirees results in a disjointed experience that contrasts sharply — and not favorably — with Chile. She explains how retirement pensions are privatized in Chile, which offers more choices for people to meet their needs than Social Security in the U.S., and how these benefits result in private markets with more competition and lower prices.

john a. powell

Overcoming Toxic Polarization: Lessons in Effective Bridging

Minnesota Journal of Law & Inequality

Delving into the nature of toxic polarization and its deepening foothold in our culture — which straddles divides of race, geography, religion, and gender — powell explores the harms that flow from these divides and how to combat the problem. Asserting that advocates for unity have inadequately theorized how power and context shape the possibilities for change, he argues that current efforts should be sensitive to structural contexts and the strength of narrative.

PAMELA SAMUELSON
WITH MATTHEW SAG

Discovering eBay’s Impact on Copyright Injunctions Through Empirical Evidence

William & Mary Law Review

The authors unpack new evidence discrediting the widely held view that judges resist applying a 2006 Supreme Court patent case holding that copyright infringement shouldn’t automatically trigger injunctive relief, and that plaintiffs must prove they are entitled to it. Examining case citations and language judges use about balancing hardships to plaintiffs and defendants in considering copyright injunctions, the paper shows that they have become harder to obtain.

REBECCA WEXLER

Life, Liberty, and Data Privacy: The Global CLOUD, the Criminally Accused, and Executive Versus Judicial Compulsory Process Powers

Texas Law Review

Exposing an anti-defendant bias in U.S. responses to global data privacy laws, Wexler says this creates structural unfairness by cutting off defense attorneys’ cross-border access to digital evidence in investigations. Using this problem to examine the constitutionality of privacy laws that disadvantage criminal defense investigations as compared to their law enforcement counterparts, she proposes a novel argument to bolster challenges to such laws moving forward.

Professor in the Midst of a Remarkable Year

Faculty Spotlight:

ard to know what’s tougher keeping up with: Professor Saira Mohamed’s busy schedule or her fast-growing list of major accolades.

In recent months, she was elected vice president of the American Society of International Law (ASIL), named an expert on the Moscow Mechanism of the Organization for Security and Cooperation in Europe (OSCE), won the National Institute of Military Justice’s Kevin J. Barry Award, and received the prestigious Berlin Prize.

Mohamed has served ASIL, which fosters the study of international law and promotes international relations based on law and justice, in various capacities. Installed as vice president at the organization’s annual meeting in Washington, D.C., she attended with eight Berkeley Law student ASIL fellows through the school’s Miller Institute for Global Challenges and the Law.

The Moscow Mechanism gives OSCE countries the option to send missions of experts to engage in investigations of human rights abuses, with each member country appointing up to six people to the standing registry of experts. The Mechanism has been used five times in the context of the Ukraine war.

The annual Barry Award recognizes excellence in military legal studies. Mohamed’s Iowa Law Review article “Abuse by Authority: The Hidden Harm of Illegal Orders” was chosen by a committee of law professors and practitioners.

Mohamed says it aims to reorient conceptions of the superior-subordinate relationship in a military context,
“to elucidate how perpetrators of crimes can also suffer injuries by those who exert control over them, and to excavate and upend conventional assumptions about authority and autonomy.”

The Berlin Prize, awarded each year by the American Academy in Berlin to about two dozen exceptional American or U.S.-based scholars, writers, and artists in myriad fields, provides semester-long fellowships. Mohamed, whose research focuses on the intersection between criminal law and human rights, will continue her work on mass violence in war and atrocity.

International law has long treated military service members as expendable resources, she says, leaving them largely untouched by laws that spell out nations’ obligations toward their civilians and adversaries.

That leaves soldiers at two poles: either a hero who is expected to die serving the state, or a monster who victimizes the innocent. Mohamed’s project will explore the durability of this “cannon fodder” mentality and international human rights law’s failure to adequately address states’ treatment of soldiers.

“Human rights law should fill this gap,” she says. “The idea of human rights law is that every person has rights by virtue of being human, even if what those rights are might vary with the particular context. And so a soldier’s human rights might be different from another person — a civilian, for example — but a soldier should have human rights just as any other person does.”

Mohamed received the Berlin Prize in 2020, but the COVID-19 pandemic delayed her experience until this fall. Recipients advance their projects free from the constraints of other professional obligations and engage German audiences through lectures, readings, and performances.

“You’re very much in community with the other fellows: sharing a workspace, meals, with so many opportunities to talk about the work, in addition to the formal presentations,” Mohamed says. “The second thing that really appeals to me is that the Berlin Prize is awarded to a diverse group of fellows — scholars and writers and artists and composers, people from the social sciences, the humanities, and the arts.” — Andrew Cohen & Gwyneth K. Shaw

Professor Saira Mohamed (third from right) with six of Berkeley Law’s eight American Society of International Law student fellows in Washington, D.C.

CAPITAL CREW: Professor Saira Mohamed (third from right) with six of Berkeley Law’s eight American Society of International Law student fellows in Washington, D.C.

Faculty Scholarship:

Learn more about Berkeley Law’s robust research output in our annual Recent Faculty Scholarship publication. It showcases the latest faculty papers and books, highlights from our centers and institutes, and major intellectual events over the past year.

www.law.berkeley.edu/our-faculty/recent-faculty-scholarship/

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