UCLA School of Law

What is work? Who is a worker? How does law and social policy shape our understandings of these terms? What is at stake when only wage workers are endowed with worker status? That limitation excludes unpaid caregiving and other forms of nonmarket production. Indeed, even within waged work, specific forms of employment take precedence, privileging industrial jobs associated with adult white men and marginalizing much agricultural, household, and other service work. How does this dual structure, both bounding and dividing labor markets, create precarious conditions for people of color, immigrants, women, and others who face exclusion from privileged forms of work, consignment to subordinated forms of work, and denial that their labors constitute work at all?

Racialized mass incarceration enables forms of economic exploitation that evade traditional worker protections despite being integrated into conventional labor markets. Such exploitation is legitimated by normalizing incarceration as the baseline against which these practices are judged. In contrast, conventional social policy imagines an “economy” separate from state violence, opposing “free labor” to “involuntary servitude.” The emergent “carceral baseline” recharacterizes labor practices as subjects of criminal justice policy, not economic regulation, especially in “alternatives to incarceration.” Examples of this baseline’s deployment are drawn from regulation of child support work programs, Thirteenth Amendment challenges to community service “working off” criminal legal debts, minimum wage claims by workers in diversion programs, and legislative proposals to exclude formerly incarcerated workers from labor protections. Implications include the need to integrate insights from theories of nonmarket work and of racial capitalism that challenge the dominance of markets as objects of description and critique in law and political economy analysis.

It is well understood that a free speech regime needs principles of speech regulation that delineate what speech is protected from sanctions and what speech may be subject to sanctions. It is less well recognized, yet increasingly important, for a free speech regime to articulate principles of interpretation that delineate what content may be attributed to speakers for the purpose of imposing otherwise legitimate legal sanctions. Drawing on both doctrinal and philosophical arguments, this Article defends a heretofore unarticulated First Amendment principle of interpretation that places guardrails on attributing content to lay speakers that they do not explicitly articulate.  Specifically, an anti-imputation principle, implicit in a number of First Amendment decisions, imposes a strong (though rebuttable) presumption against levying legal sanctions against lay speakers for objectionable content they do not explicitly say. This presumption holds even when explicit assertions of that objectionable content could permissibly be subject to sanctions and even when that objectionable content may be reasonably or is commonly inferred from what the speakers have explicitly said. The breathing space this sanction-resistant zone creates is essential for speakers to articulate and refine their thoughts and to make, identify, and correct their mistakes through interchange with others. It protects speakers from the prospect of adverse or uncharitable interpretative audiences.To realize the values of freedom of speech and to provide speakers breathing room,  especially about divisive issues, the principles of interpretation that ground legal sanctions  should not reflexively track conversational meaning and the reasonable understanding and inferences ofaudiences or observers. To protect an expansive common dialogical space for speakers and audiences to air, discuss, and better understand matters of public concern, legal sanctions should only be triggered by what speakers explicitly say absent strong contextual evidence that they and their audience should converge on a distinct, regulable meaning.

Documenting contemporary difficulties in realizing indigenous property rights, this article posits that human rights and property rights are inextricably linked. The ability to hold property and wield power is essential to the exercise of other basic human rights. Thus, the recognition of property rights is critical as it allows groups to function as “economic actors” in society. Because classical property models operate to deprive indigenous peoples of the right to control their own property — tangible and intangible — they are often powerless to exercise their human rights. This article contends that the human rights goals of the Native American Graves Protection and Repatriation Act (NAGPRA) will only be realized through a fundamental shift in thinking from an individual rights-oriented property model to one capable of accommodating both the rights and responsibilities inherent in property ownership. Finally, this article asserts that it is necessary to move beyond the classical property model — one which considers the rights but not the obligations of individual property owners — to new models of property capable of reconceptualizing ownership and entitlement for the protection of indigenous peoples’ human rights and continued existence.

Modern scholarship takes a decidedly negative view of trademark law. Commentators rail against doctrinal innovations like dilution and initial interest confusion. They clamor for clearer and broader defenses. And they plead for greater First Amendment scrutiny of various applications of trademark law. But beneath all of this criticism lies overwhelming agreement that consumer confusion is harmful. This easy acceptance of the harmfulness of confusion is a problem because it operates at too high a level of generality, ignoring important differences between types of relationships about which consumers might be confused. Failure to differentiate between these different relationships has enabled trademark owners to push the boundaries of trademark protection, as they have been able to characterize virtually every use of their marks in consumer confusion terms.

This Article begins the process of distinguishing types of confusion by focusing on the supposed harms to producers from confusion regarding the source of non-competing goods. More specifically, this Article evaluates the assumptions underlying arguments in favor of protection against non-competing uses in light of the growing marketing literature regarding brand extensions and brand alliances. It demonstrates that non-competitive uses of a mark are unlikely to impact negatively the mark owner’s reputation for quality. Consumers, it turns out, are quite adept at compartmentalizing their quality expectations. At the same time, the literature provides some empirical support for the claim that third-party uses of a mark may interfere with a mark owner’s ability to expand into new product lines in the future.

This is the written version of a keynote address delivered to the Southern California Law and Social Science (SOCLASS) Forum, “Elections, Law and Democracy” Conference, Whittier Law School, March 28, 2014. Using examples from ballot access cases, campaign finance cases, redistricting cases, and election administration/voter identification cases, the address makes two arguments: First, in the Supreme Court’s election law cases, talk about “facts” and “evidence” is the tail wagging the dog. The Court is imposing value judgments in these cases, but sometimes camouflaging them behind a search for evidence, or worse yet, asserting facts about the state of the evidence which are not borne out by the evidence. This is true for both liberal and conservative Justices. Second, the Court needs to take one of two paths to correct its approach. Either it needs to get serious about facts and evidence in these cases, a change which has the potential to profoundly change our laws about campaign finance, voter identification, gerrymandering, and ballot access. Or the Court needs to stop camouflaging its value judgments and admit that facts don’t matter and no amount of evidence will matter given the Justices ideological commitments. I strongly favor the first approach, but the second approach would be better than the status quo when it comes to transparency and intellectual honesty. After discussing these two points the paper turns to a final question: how should social scientists and law professors who value social science respond to the Court’s misuse and abuse of social science in the election law cases?

Artificial intelligence and the human mind share a decisionmaking architecture, and antidiscrimination law is built for neither. In both, a producing layer encodes the statistical regularities of an unequal world and shapes the inputs a decision runs on, while an avowing layer deliberates, explains, and sincerely denies discriminatory intent — without being able to observe the processing beneath it. We name this the architecture of disclaim, and we show it is functionally isomorphic across silicon and carbon. Recent computer-science studies of large language models are echoing, sometimes measure for measure, a half-century of implicit bias research on human brains. The parallels are not cosmetic. Models and brains exhibit similar bias effects, with similar resistance to correction. Alignment training and diversity training fail in the same way and for the same reason: each updates what a system says without retraining what it computes. Asked whether it discriminated, either system answers confidently — and the answer is sincere and wrong.The architecture defeats the law's existing toolkit, cluster by cluster. Consciousness (purposeful discrimination) fails because the avowing layer answers honestly. Cause (but-for causation) fails because race travels in a bundle of proxies that no counterfactual can isolate, so the test can convict but never acquit. Consequence (disparate impact) comes closest — it never asks about anyone's interior — but it arrives statutorily confined, constitutionally imperiled, and missing an accepted account of why its disparities matter.A fourth cluster survives. Conduct asks not what the actor intended, observed, or can counterfactually prove, but what it should have done. Two legal traditions are building toward it right now, neither aware of the other. AI governance has converged on assessment, audit, and reasonable response; implicit bias law has replaced Batson's futile hunt for purposeful intent with an epistemically upgraded objective observer. Two construction crews are working with one blueprint. The convergence is not coincidence — it is the signature of the same architecture asserting itself across different substrates — and naming it makes an exchange possible, because each side holds what the other is missing. AI governance holds ex ante duties that attach before any contested decision. Implicit bias law holds the epistemic content without which a reasonableness benchmark is an empty vessel.The exchange composes a new standard: the responsible person — an actor charged with what the science of decisional systems has established, bound by ex ante duties before the decision, and judged on that same knowledge after it. Because the standard interrogates no interior and demands no counterfactual, it reaches the firm whose managers consult a frontier model persistently, informally, and mid-discretion — which is what every firm may be becoming, and what every substrate-specific regime misses. What to do? Judges can begin through evidentiary rulings alone. Legislators can finish, enacting ex ante obligations calibrated to what minds and machines can and cannot do. Two decades ago, one of us asked why we tolerate from our organically grown black boxes what we would never tolerate from synthetic ones. We shouldn’t. The architecture of disclaim means that neither minds nor machines can simply avow their way to fairness — but the law can now hold both to becoming what they claim to be.

Law is a weak tool for environmental protection in China. Nonetheless, citizens and lawyers are using the law in a variety of creative ways to press for compensation, cessation of environmental harms, and restoration of environmental degradation. This conference article examines the benefits and shortcomings of legal approaches to environmental protection in China.