Study Hall

Selected Faculty Scholarship

Valued Voices Across the Legal Landscape

Faculty Honors:

Self-promotion may be a way for law schools to showcase the strengths of their faculty’s teaching, research, and initiatives. But it’s far more telling when organizations outside that tent enlist and honor such expertise. As usual, Berkeley Law faculty are in great demand and routinely recognized these days while guiding several areas of law.

Here are some recent examples.

TECH TITANS: The White House tapped professors Catherine Crump and Rebecca Wexler for high-level roles to influence federal technology policy. Crump, director of our Samuelson Law, Technology & Public Policy Clinic, is a White House Domestic Policy Council senior policy advisor. The council drives the development and implementation of the president’s domestic agenda in the White House and across the federal government.

Wexler is a senior policy advisor for science and justice at the White House Office of Science and Technology Policy. The office works to maximize the benefits of science and technology to advance health, prosperity, security, environmental quality, and justice for Americans, advising the President and the executive branch on such matters.

A VIP in IP Analysis: Professor Sonia Katyal won multiple honors for “From Trade Secrecy to Seclusion,” written with Charles Graves, which probes how trade secrecy laws thwart the release of information in ways that raise public policy questions. The article received the first Law Science and Innovation/IP Program Prize from Arizona State University’s Sandra Day O’Connor College of Law, and Jotwell named it one of the best works in recent intellectual property law.

The article shows how trade secrecy laws — traditionally used to protect IP from misappropriation — have expanded against public disclosures for journalists and whistleblowers, government usages of private technologies for artificial intelligence, and diversity and workplace harms in labor and employment.

Super-Cited Scholars: Nine Berkeley Law professors are among the 75 most cited law professors with Google Scholar pages in a recent study that factors in both their number of publications and how often their works are cited by others. This doesn’t include Chemerinsky and some other top scholars who do not have a Google Scholar page.

The new list was compiled by Brian Leiter, a professor at the University of Chicago Law School. Berkeley Law faculty members on the list include professors Alan Auerbach, Daniel Farber, Orin Kerr, Jonathan Simon ’87, Pamela Samuelson, and John Yoo, as well as professors emeriti Robert Cooter, Daniel Rubinfeld, and Franklin Zimring.

California Teaming: David A. Carrillo ’95, executive director of Berkeley Law’s California Constitution Center, was elected chair of the California Law Revision Commission for 2022–23. Appointed in 2019, he now heads the agency that studies problem areas in the state’s law and proposes reforms. The commission is currently engaged in studies of antitrust law, environmental reforms, and the Equal Rights Amendment.

After making preliminary decisions on how to reform a law, the commission issues a tentative proposal, solicits public comment, considers that input, and typically makes a final published recommendation to the legislature and governor. Historically, over 90% of its recommendations have been enacted into law, affecting more than 22,500 sections of California statutory codes.

Putting the Pro in Civ Pro: Professor Andrew Bradt was appointed Associate Reporter to the Judicial Conference Advisory Committee on Civil Rules by U.S. Chief Justice John Roberts for a five-year term that began Jan. 1. It’s a prestigious role for the renowned scholar, Berkeley Law’s associate dean for J.D curriculum and teaching and faculty director of its Civil Justice Research Initiative. He will help shape the next evolution of the Federal Rules of Civil Procedure, which govern non-criminal proceedings in U.S. district courts.

“For a proceduralist, it’s really like manna from heaven to be on the ground of the rulemaking process,” Bradt says. “The chance to collaborate with such an incredible committee on this important work is irresistible.”

The Dean’s Stately Honor: Dean Erwin Chemerinsky received the Ronald M. George Public Lawyer of the Year Award, given annually by the California Lawyers Association to a well-regarded practitioner “who has provided outstanding service to the public and possesses an exemplary reputation in the legal community and the highest of ethical standards.”

Chemerinsky, president of the Association of American Law Schools in 2022, was hailed for his work illuminating how the U.S. Constitution and the rule of law are vital to democracy. The nation’s most cited constitutional law scholar, Chemerinsky is a prominent Supreme Court analyst and his op-eds and columns frequently appear in leading journals and newspapers across the country.

Privacy Powerhouse: “Privacy and/or Trade,” a University of Chicago Law Review article by Berkeley Law Professor Paul M. Schwartz with Anupam Chander, was named a winner of the annual Privacy Papers for Policymakers awards. Given by the nonprofit Future of Privacy Forum, the awards honor scholarship that’s useful to policymakers within the U.S. Congress, federal agencies, and international data protection authorities.

Schwartz and Chander trace how international privacy and trade law, which developed together, have diverged and now conflict with one another. Upon finding that a whopping 61 countries outside the European Union have created their own “adequacy” standards for international data transfers, a splintering that threatens global data trade, the authors propose various policy solutions.

David A Carillo portrait
SERVICE FOR THE STATE: David A. Carrillo, executive director of Berkeley Law’s California Constitution Center, chairs the California Law Revision Commission. Photo by Brittany Hosea-Small

Faculty Papers:

Now more than ever, in our dizzying and at times disillusioning click-bait world where harmful misinformation runs rampant across the digital terrain, objective research matters. Astute analysis matters. Nuanced scholarship matters. When Berkeley Law professors put pen to paper (OK, these days fingertips to laptop keys), their writing reflects what makes their school stand out. Tackling critical issues and breaking new ground, they bring an exceptional level of passion, detail, and acumen to their work.

These articles from the past few months show the depth of our faculty’s research on a broad range of important topics.

KENNETH A. BAMBERGER
WITH ARIEL EVAN MAYSE
Revisiting a Jurisprudence of Obligation
Touro Law Review
The authors argue that a nuanced adaptation of Robert Cover’s landmark theory of “incumbent obligation” as Jewish law’s organizing feature can help policymakers develop new approaches to information privacy and environmental ethics. Their paper calls the theory especially valuable in contexts where success has been elusive in locating a language or strategy that sufficiently addresses overwhelming modern problems at the juncture of individual and community.
ERIC BIBER
WITH SHELLEY HE, HELEN AKI, MARIBETH HUNSINGER, & STEPHANIE PHILLIPS
How Does Restructuring of Electricity Generation Affect Renewable Power?
Energy Law Journal
Compiling a comprehensive dataset of different electricity generation restructuring policies since the 1990s, the authors note that some advance renewable energy development (regulatory changes for siting facilities in one state increased its capacity levels by 50%). But their paper also finds little impact on other core areas, and warns that a utility system’s public versus private status won’t likely impact renewable investment or be a key driver of outcomes.
KHIARA M. BRIDGES
Race in the Roberts Court
Harvard Law Review
Invited to write the foreword of Harvard Law Review’s annual issue on the Supreme Court’s most recent term, Bridges argues that the Roberts Court only remedies racism against people of color when it encounters something resembling the pre–civil rights era, from poll taxes to eugenics. She writes that the Court provides no relief to injured parties unless the racism in the challenged law or policy “is so closely tied to white supremacy that it would be embarrassing for the Court to do nothing.”
SETH DAVIS
Empire in Equity
Notre Dame Law Review
Davis describes how a contest for empire helped form the types of matters American federal courts can adjudicate. Showing how a 1793 English Court of Chancery decision came to be cited by U.S. lawyers and judges for the principle that courts won’t address political questions — and that equity won’t intervene to protect political rights — his paper emphasizes the ruling’s impact on entrenching the notion that equity should stay out of contests over political power.
DANIEL FARBER
WITH ROSEMARY LYSTER & RORY MCFADDEN
Climate-Induced Wildfires and Strengthening Resilience in Electricity Infrastructure
Utrecht Law Review
Recent climate-induced disasters have destroyed human and non-human communities and ecosystems around the world. Studying electricity grids, the authors collate the latest climate science, relating it to how wildfires have affected electricity infrastructure in Australia and California. Their paper compares how these jurisdictions approach grid governance and the stark contrast in their approach to risk management, and explains how that impacts their resilience strategies.
JONATHAN S. GOULD
Puzzles of Progressive Constitutionalism
Harvard Law Review
How should progressives think about our constitutional order? Two common answers focus on the courts and the Constitution’s role in public discourse. Gould shows the dangers of these paths, arguing that each can impede progressive politics. He instead contends that efforts to reform government structure — the ways in which the Constitution and law more generally shapes the power of institutions — represent the most promising path forward for progressives.
RACHEL STERN
WITH JIEUN KIM, BENJAMIN L. LIEBMAN, & XIAOHAN WU
Closing Open Government: Grassroots Policy Conversion of China’s Open Government Information Regulation and Its Aftermath
Comparative Political Studies
While known for its tight political control, China sparked a surge of political-legal activism in 2008 with its Open Government Information (OGI) regulation. Studying 57,095 OGI lawsuits, interview data, and government documents, the authors reveal how the regulation helped define new legal labels that revamped court access. Their paper underscores how procedural rules and frontline judges can shape possibilities for political participation under authoritarianism.
KATERINA LINOS
WITH ELENA CHACHKO
Ukraine and the Emergency Powers of International Institutions
American Journal of International Law
International institutions are resorting more to emergency powers to address global crises, but the study of this process is in its infancy. Asserting that the European Union has used these powers most ambitiously, the authors consider its legal and policy responses to Russia’s invasion of Ukraine. They say the EU has pushed through unprecedented legal reforms in many areas, and that the techniques used may be replicated in other organizations and in other emergencies.
PETER S. MENELL
WITH SHYAMKRISHNA BALGANESH
Misreading Campbell: Lessons for Warhol
Duke Law Journal Online
The Supreme Court is set to revisit its most salient fair use precedent, which introduced the idea of “transformative use.” During oral argument in the case, the justices focused on how the transformativeness of a work might be considered as part of the fair use doctrine and reconciled with copyright’s right to prepare derivative works. The authors say the answer to these questions lies in the logic and careful analysis of a seminal 1994 case, Campbell v. Acuff-Rose Music.
SAIRA MOHAMED
Abuse by Authority: The Hidden Harm of Illegal Orders
Iowa Law Review
When a leader orders a subordinate to commit a crime, how should the law and a society respond? Leaders who give such orders are either held blameless or considered a party to the crime committed by the subordinate. Focusing on the military, Mohamed argues the illegal order is an abuse of the authority the leader holds over their subordinate, and that an illegal order should be understood as a distinct wrong committed by the superior against the subordinate.
DYLAN PENNINGROTH
Race in Contract Law
University of Pennsylvania Law Review
Modern contract law is rife with ideas about race, slavery, and cases involving African Americans, but that presence is hard to detect. Penningroth offers a rich historical account of when, where, and why legal professionals have highlighted race in contract law. He writes that the “whitening” of contract law allowed it to form as a distinct, coherent body of law, but at a steep cost to its doctrinal and conceptual integrity, to the law school curriculum, and also to students.
EMILY RONG ZHANG
Questioning Questions in the Law of Democracy: What the Debate Over Voter ID Laws’ Effects Teaches About Asking the Right Questions
UCLA Law Review
Voter identification laws remain hotly contested, with critics derisively calling them voter suppression laws. Zhang reveals how they have become a pain point for a historically close, collaborative community of social scientists, lawyers, and legal scholars. Using social science literature and descriptive evidence revealed during litigation, her paper offers the first account of why empiricists have consistently failed to detect a turnout effect from voter ID laws.
STEVEN DAVIDOFF SOLOMON
WITH RACHEL S. ARNOW-RICHMAN & JAMES HICKS
Do Social Movements Spur Corporate Change? The Rise of ‘MeToo Termination Rights’ in CEO Contracts
Indiana Law Journal
Dissecting a novel dataset of CEO employment agreements from before and after the #MeToo movement, the authors shed new light on whether social movements trigger corporate change. Their paper contends that the rise in “MeToo termination rights” holds instructive lessons for corporate governance, executive contracting, and gender equity — as evidenced by increased corporate control of CEO behavior and more institutional accountability for sex-based misconduct.
photo of Kathryn Abrams with nature behind
FULL IMMERSION: Open Hand, Closed Fist was both an intellectual and physical journey for Professor Kathryn Abrams, who added new skills to her research toolbox to pull it off. Photo by Darius Riley
Faculty Book Spotlight:

Exploring Unlikely Activism

T

he seed for Kathryn Abrams’ new book sprouted at a Berkeley Law faculty retreat.

After she presented an almost-completed article on emotion’s role in social movements — ideas squarely in line with her far-reaching scholarship rooted in feminist theory — fellow Professors Ian Haney López and Leti Volpp suggested a new frame to her piece: Arizona’s battle over anti-immigrant laws, particularly the one authorizing police to ask anyone they suspected of being undocumented to show their documents, during the course of any legal stop.

Abrams started digging.

“I quickly realized that this wasn’t a frame for my article, it was a new piece altogether,” she says. “I said to myself, ‘I wonder what would happen if I actually went down there?’”

One trip became many and Abrams spent years with activists, slowly gaining their trust. Her article became a book, published by the University of California Press last fall: Open Hand, Closed Fist: Practices of Undocumented Organizing in a Hostile State, which tracks organizers’ efforts to fight anti-immigrant legislation and tackle related causes.

“It was the most energizing thing I’ve done in my career,” she says.

The title comes from Carlos Garcia, then the leader of Puente-Arizona, a group Abrams spent extensive time with.

“The ‘open hand’ is the process of bringing people into community, and making them feel there are others who share their experience,” she says, describing a dual sense of personal empowerment and collective protection. “You learn that the same person who can make you feel at home by mirroring your experience can also put in a bunch of calls to Immigration and Customs Enforcement and supporters to get you out of detention if you get arrested during an action.

“The ‘closed fist’ is the practices that enable you to resist, advocate for change, and model public commitment to a political community and speak to decision-makers and the public.”

Not a political prescription, Open Hand, Closed Fist describes a way of bringing to action people whose legal status and past experience make them unlikely activists. Professors at Berkeley Law’s interdisciplinary Jurisprudence and Social Policy Program helped chart Abrams’ methodology, as she took courses with Kristin Luker on interviewing and Calvin Morrill on ethnographic observation and got advice from Catherine Albiston ’93.

In Arizona, Abrams embedded herself into organizing groups: Listening, interviewing leaders, and observing protests, meetings, and activists knocking on doors to tell their stories.

Immigrant activists sought to answer anti-immigrant laws and rhetoric with concrete examples of contrasting action, Abrams says.

“You say we’re a burden on the economy? We’ll show you we’re very hard workers who give and don’t take. You say we’re outsiders to the political system? We’ll register voters, or march 60 miles into the desert to protest immigrant detention. In some cases, we’ll let ourselves get arrested — even when it might lead to deportation — to protest what’s happening. These actions made an impression on the public, even as they moved the state or country toward political or legal change.” — Gwyneth K. Shaw

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