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Faculty Honors & Scholarship

Professor Spotlight:

Andrea Roth Awarded New Chair Bearing Defense Titan’s Name

VERSATILE SCHOLAR: Professor Andrea Roth brings vast expertise that spans criminal law and procedure, forensic evidence, and technology. Photo by Brittany Hosea-Small

rofessor Andrea Roth, a groundbreaking scholar of criminal law and evidence in an increasingly tech-driven world, has been awarded the Barry Tarlow Chancellor’s Chair in Criminal Justice — a position created by a $5.5 million gift to Berkeley Law from the legendary defense lawyer’s estate last year.

Roth, who joined the faculty in 2011, says she’s thrilled to carry the namesake of Tarlow, a giant in criminal justice, particularly in California. He co-founded California Attorneys for Criminal Justice and was known for being not only a fierce advocate but also a scholarly presence in the state bar who trained and helped so many others, she adds.

“It’s an incredible honor, and even more so to be associated with Barry Tarlow and his family,” Roth says. “As one attorney put it in a recent tribute, he was ‘never satisfied with what could be done better.’ I hope to live up to that legacy in my own work.”

Dean Erwin Chemerinsky says he can’t think of a better person to hold a chair named for Tarlow.

“It is wonderful that Andrea Roth will be the first holder of the Barry Tarlow Chair in Criminal Justice,” he says. “Andrea is a superb teacher and a great scholar in the areas of criminal law and procedure. An endowed chair is the highest honor a university can bestow and Andrea is so deserving of this recognition.”

Roth teaches Criminal Law, Criminal Procedure, Forensic Evidence, and Evidence, and is a faculty co-director of the Berkeley Center for Law & Technology. She also chairs UC Berkeley’s Committee on Teaching. Her interest in how science and evidence intersect goes back to her days as a public defender in Washington, D.C., where she was a founding member of a forensic practice group that both studied and litigated forensic DNA typing.

Entering her last year of a three-year term as chair of the National Institute of Standards and Technology’s legal advisory group on forensic science, Roth has written extensively about the ways that science- and technology-based evidence is reshaping the criminal justice system.

Her 2019 California Law Review article “‘Spit and Acquit’: Prosecutors as Surveillance Entrepreneurs” revealed how the Orange County prosecutor’s office was using plea deal offers to entice defendants charged with misdemeanors to give a DNA sample for a permanent database. The article helped inspire a legal challenge that is now on appeal.

Roth also writes on broader criminal justice issues, such as a 2022 Duke Law Journal article and a 2024 California Law Review article arguing for a right to jury and lawyer, respectively, in “all criminal prosecutions” — the language of the Sixth Amendment. This spring, Roth is working with the Advisory Committee to the Federal Rules of Evidence to help develop new rules for machine-generated proof.

With California at the forefront of criminal justice reform efforts, Berkeley Law has expanded its already impressive depth in the field. Last year, former San Francisco district attorney Chesa Boudin joined the school as the founding executive director of its Criminal Law & Justice Center, which is already hosting important conversations about the movement’s next steps.

“It’s an exciting time to be part of criminal justice at Berkeley Law, because of our uniquely brilliant and service-minded students, Berkeley’s public mission, and our position in a reformist state,” Roth says. “We also have a particularly eclectic criminal faculty: former prosecutors, former defense attorneys, criminal law theorists, international criminal law experts, crimmigration experts, and also economists and sociologists working on criminal law-adjacent projects.

“I feel so lucky to be a part of it.” — Gwyneth K. Shaw

The Roth File

Co-author of a leading Evidence casebook, Evidence: Cases, Commentary, and Problems, with David Alan Sklansky
Chairs the Legal Resource Task Group of the National Institute of Standards and Technology’s Organization of Scientific Area Committees
Chairs UC Berkeley’s Committee on Teaching
Elected member of the American Law Institute
One of four recipients of UC Berkeley’s campus-wide Distinguished Teaching Award in 2019
Won the university’s 2017 Prytanean Faculty Award, given annually to one pre-tenure female faculty member
Received Berkeley Law’s annual Rutter Award for Teaching Excellence in 2016
Given teaching awards from Women of Berkeley Law and the Berkeley Criminal Law Journal

Research Spotlight:

Shining a Light Where It’s Needed Most

While the broad areas Berkeley Law professors explore are generally familiar, the issues they unearth within them are routinely off the radar and vitally important. Their wide-ranging research shares a common thread of probing how to improve regulations, laws, and policies so that they are designed, enacted, and implemented effectively — and equitably.

Here are just a dozen recent examples of their needle-moving scholarship.

ABBYE ATKINSON

Borrowing and Belonging

California Law Review

Atkinson explores how our society encourages a “consumerist vision of American belonging” that’s often fueled by credit and other borrowing while debt policies and norms intentionally exclude distressed debtors. Atkinson, who focuses on the law of debtors and creditors as it affects marginalized communities, argues that if credit- and debt-based consumption is tied to the idea of belonging, policies involving them must expand beyond their dominant economic orientation.

KENNETH AYOTTE
WITH ALEX ZHICHENG HUANG

Standardizing and Unbundling the Sub Rosa DIP Loan

Emory Bankruptcy Developments Journal

Ayotte and Huang analyze how “debtor-in-possession” loans, where a company that filed for Chapter 11 bankruptcy stays in control, often drive reorganization plans at the start of the process, letting the lender gain the “golden ticket” to become the creditor and take over the bankrupt company. They say this process can preserve the company but hampers the respect for priorities, a main bankruptcy system goal, making greater transparency essential to protect priorities.

ERIC BIBER
WITH MOIRA O’NEILL & NICHOLAS J. MARANTZ

Measuring Local Policy to Advance Fair Housing and Climate Goals Through a Comprehensive Assessment of Land Use Entitlements

Pepperdine Law Review

The authors’ study of land use entitlements supports California laws to expand local reporting requirements for zoning and planning regulations that increase needed housing production, especially affordable housing. They illustrate the need to collect a wide range of precise objective data on how cities apply law, and offer a simple but sufficiently comprehensive measurement of regulation that can help identify when a local land use regime may be excluding affordable housing.

ELENA CHACHKO

Toward Regulatory Isolationism? The International Elements of Agency Power

UC Davis Law Review

International factors like treaties, soft law, and foreign policy interests, a big part of federal agencies’ work, are largely ignored in the current debate on constraining them. Chachko says administrative law is surprisingly welcoming to action that invokes such factors, yet the Supreme Court’s reevaluation of key doctrines threatens to limit agencies’ freedom to engage with the world. She calls this freedom essential and proposes ways to defend it in the new landscape.

DHAMMIKA DHARMAPALA
WITH NUNO GAROUPA

The Law of Restitution for Mistaken Payments: An Economic Analysis

Journal of Legal Studies

The law of restitution and unjust enrichment is now an important part of private law globally, yet it has generated little economic analysis. Dharmapala and his co-author develop a model of restitution’s core example, mistaken payments, that offers novel insights on the rationale for partial restitution, distortions generated by the change of position defense, and the discharge for value doctrine implicated in a major case involving a large mistaken payment by Citibank.

DANIEL FARBER

Inequality and Regulation: Designing Rules to Address Race, Poverty, and Environmental Justice

American Journal of Law and Equality

Inequality plays little role in how U.S. regulations are crafted. Farber urges agencies to focus on the extent of risk that people face, and their differences in both exposures to risk and vulnerabilities when a risk emerges. If income or race drives either, he says incorporating this in predicting individual exposure and vulnerability would improve regulatory responses to inequality — in a way that fits with current practice and legal doctrine and assures policy durability.

DAVID HAUSMAN
WITH DOROTHY KRONICK

The Illusory End of Stop and Frisk in Chicago?

Science Advances

Critics and proponents of “stop and frisk” policing assume ending it reduces police-civilian interactions. But research from Chicago finds that a drop in pedestrian stops coincided with an increase in traffic stops — and evidence suggesting that officers deliberately switched their focus. The authors show how the new traffic stops affected the same types of Chicagoans previously subjected to pedestrian stops, and urge policymakers to weigh the possibility of such substitution going forward.

SHARON JACOBS
WITH DAVE OWEN

Community Energy Exit

Duke Law Journal

U.S. communities are asserting greater control over their energy systems via new technologies and governance forms. While recognizing the benefits community-centered energy systems can bring, the authors explain ways in which they may also produce systemic inequities and other concerns. Pointing to concrete steps some states have taken to avoid such pitfalls, they unpack reasons why adequate legal oversight is needed to avoid future expansion devolving into a form of “energy elitism.”

SAIRA MOHAMED

We Want You: Conscription and the Law in Russia’s War of Aggression

Berlin Journal

International law prohibits wars of aggression, yet it treats military conscription of adult nationals as a right of sovereign states, even for aggressive wars. Mohamed argues that individuals should not be forced to fight in a state’s war of aggression, and that those facing conscription for aggression should merit both affirmative protection against forced military service in that circumstance and recognition of the harms that arise from being forced to fight an illegal war.

OSAGIE K. OBASOGIE
WITH RACHEL MORELLO-FROSCH

The Climate Gap and the Color Line — Racial Health Inequities and Climate Change

New England Journal of Medicine

Outlining how extracting and burning fossil fuels and other climate change effects disproportionately harm communities of color, the authors offer a multipronged strategy to close this “climate gap.” They urge transforming multiple systems to achieve policies that connect climate-change mitigation and adaptation with community building, financial opportunity, and political power to advance racial and economic justice and reduce health inequities.

DIANA REDDY

After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions

Yale Law Journal

Although American public support for labor unions has soared in recent years, Reddy asserts that discussions of unions are constrained by the legacy of past legal decisions. Synthesizing labor history, legal doctrine, sociological theory on social movements, and original empirical work, she traces the trajectory of what she calls the law of apolitical economy in courts, identifies its broader cultural reverberations, and reveals new evidence to show why it still matters.

AMANDA L. TYLER

Judicial Review in Times of Emergency: From the Founding Through the Covid-19 Pandemic

Virginia Law Review

From President Abraham Lincoln’s Civil War blockade to the mass incarceration of Japanese Americans during World War II, the U.S. Constitution “has meant something different in times of emergency,” Tyler writes. She says that the concepts of war and emergencies continue to expand, that the Covid-19 pandemic and extensive litigation sparked by the government’s response adds a new chapter, and that the U.S. Supreme Court has responded with inconsistency rather than developing a cohesive approach.

MYTHBUSTER: Professor Dylan Penningroth’s new book reveals how Black Americans actively used the law to their benefit, even before the Civil War. Photo by Saroyan Humphrey

Book Spotlight:

Centering the Law in Black Lives, From the 1830s to the 1970s

seed planted by old family lore led Berkeley Law Professor Dylan Penningroth to hours in the record rooms of county courthouses across the South, teasing out how Black people used the levers of the law to advance their interests from the last decades of slavery through the 1970s.

His recently published book, Before the Movement: The Hidden History of Black Civil Rights, explores how Black people worked within the laws of property, contracts, marriage and divorce, business and religious associations, and more to assert their rights — even while other parts of the legal system offered discrimination, hostility, and violence.

By exercising these “rights of everyday use,” Penningroth argues, Black Americans helped shape the law as we know it today. Also a professor of history and associate dean of the law school’s Jurisprudence & Social Policy/Legal Studies Program, he says he’d always wanted to read a book of African American history that had African Americans, not race relations, at the center. Family stories help spark his thesis.

During the last days of slavery, Penningroth’s great-great-great-uncle Jackson Holcomb had a boat, and at least once made a deal with some Confederate soldiers to carry them across the Appomattox River in Virginia — who paid him at the end of the journey.

“It seemed that the soldiers treated him as if he had the right to contract and the right to own property,” Penningroth says. “I began to realize that there’s this whole world of lived legal experience that historians and legal scholars didn’t really talk about, and that set me off on the path toward this book.”

To document the period from the 1830s through the 1970s, he used a wide variety of sources, particularly documents from local courts in four states and the District of Columbia — following in the footsteps of Black historians who had mined courthouse records in the 1940s. Since the documents didn’t identify anyone by race, he and graduate research assistants looked up litigants’ names for more than 14,000 cases using Ancestry.com’s digitized manuscript census site.

What emerged was a richer story of Black life, a changing concept of “civil rights,” and a surprising new perspective on the modern law school curriculum. Cases involving race, slavery, and African Americans, he discovered, have been used to develop common law rules and hone doctrinal and theoretical problems in contract law. And property and contract law have always been intertwined with race and “civil rights.”

“Why would African Americans turn to law in the depths of Jim Crow?” Penningroth asks. “The answers to that question should loom especially large in our minds at a time when there are many people who are working overtime to weaken Americans’ faith in the rule of law.” — Gwyneth K. Shaw

Honors Spotlight:

Treasured Across the Legal Terrain

The past few months reinforced how Berkeley Law faculty members are regularly tapped for their expertise and recognized for their influence.

digital illustration of the sun setting over the horizon

Illustration by Ed Dingli for Fine Acts

Remembering a GIANT: The Law & Society Association’s Law & Society Review published a special memorial issue honoring Professor Lauren Edelman ’86, who died in February 2023. Edelman was deeply involved with the interdisciplinary organization, and its president in 2002-03. Several works were written by her faculty colleagues and former students, such as Professors Catherine Albiston ’93, Ph.D. ’01, Catherine Fisk ’86, Calvin Morrill, Osagie K. Obasogie, and Diana Reddy Ph.D. ’23.

PATENT PROBING: Professor Robert Merges’ latest book, American Patent Law: A Business and Economic History, offers a full history of the U.S. patent system from 1790, emphasizing how private enterprise has used patents to pursue business goals. It highlights how Congress and courts have adapted patent rules to support socially beneficial business practices, and tried to modify those rules to re-channel investment and effort away from harmful practices like extortionate litigation.

DATA PROTECTOR: Lecturer James Dempsey, former executive director of the Berkeley Center for Law & Technology, was sworn in as one of eight judges on the federal Data Protection Review Court, created last year within the Justice Department’s Office of Privacy and Civil Liberties. It’s part of a broader executive order to ensure impartial review of certain complaints filed by people outside the U.S. who claim their personal information was collected illegally during U.S. intelligence activities.

Ethics IN AI: Professor Sonia Katyal was named one of “100 Brilliant Women in AI Ethics,” published by Women in AI Ethics, for making impactful contributions to crafting a responsible and diverse future for artificial intelligence. Katyal’s award-winning work includes a recent paper on how the dynamic between AI and gender is highly complex and has a strong effect on LGBTQ+ communities.

TALKING TERMS: Professor Seth Davis was a lead drafter of an American Academy of Arts and Sciences report urging 18-year term limits for U.S. Supreme Court justices. It says this would reduce the polarization and partisanship life tenure creates, boost the judiciary’s reputation, and align the U.S. with 49 of its states and most nations. It also offers a constitutional approach that could be reached in a reasonable time frame.

DEAN’S LIST: Dean Erwin Chemerinsky received the prestigious John P. Frank Award from the U.S. Courts for the Ninth Circuit. The award honors a lawyer who has shown outstanding character and integrity, dedication to the rule of law, proficiency as a trial and appellate lawyer, success in promoting collegiality among members of the bench and bar, and a lifetime of service to the Ninth Circuit’s federal courts.

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