UCLA Law Review Volume 60, Issue 3

Urban Bias, Rural Sexual Minorities, and the Courts

Urban bias shapes social perceptions about sexual minorities. Predominant cultural narratives geographically situate sexual minorities in urban gay communities, dictate the contours of how to be a modern gay person, and urge sexual minorities to come out and assimilate into gay communities and culture. This Article contests the urban presumption commonly applied to all sexual minorities and focuses specifically on how it affects rural sexual minorities, who remain largely invisible in the public discourse about sexuality and equality.

This Article makes two important contributions. First, by exposing urban bias, it contributes to a broader discussion about how law and society construct gay identity in exclusionary ways across race and class, and it expands that discussion to attend to place. The cultural prerogative to come out and into a gay community disregards social- and class-based circumstances that can necessitate alternative strategies for belonging, and it subordinates aspects of identity centered around families, religion, and place-based communities of origin. Urban bias erases the most marginalized sexual minorities’ experiences from public discourse and places the burden on individuals to make positive change for themselves.

Second, this Article draws attention to the legal dilemmas faced by a largely invisible population. Judges play a key role in perpetuating urban bias by internalizing stereotypes about gay people and gay identity and by explicitly approving the belief that sexual minorities do not belong in small towns. Acknowledging the existence of rural sexual minorities, understanding that various factors may render uprooting to an urban gay community undesirable or impossible, and appreciating that rurality brings distinct social experiences and legal needs are first steps in combatting discrimination against these vulnerable people. Rather than invoking characteristics common to rural life to make rural communities more hostile to residents who are sexual minorities, courts should account for those same characteristics in rural sexual minorities’ claims to legal protections and access to justice. This Article offers suggestions for how judges should take rural sexual minorities into account to maximize the latter’s ability to live comfortably in their homes.

Private Equity and Executive Compensation

After the financial crisis, Congress directed regulators to enact new rules on CEO pay at public companies. The rules would address the possibility that directors of public companies put managers’ interests ahead of shareholders’ when setting executive pay. Yet little is known about how CEOs are paid in companies whose directors have undivided loyalty to shareholders. These directors can be found in companies owned by private equity firms—the savvy investors long renowned for their ability to maximize shareholder value.

This Article presents the first study of how CEO pay in companies owned by private equity firms differs from CEO pay in public companies. The study finds that directors appointed by private equity firms tie CEO pay much more closely to performance by preventing CEOs from selling, or “unloading,” their holdings of the company’s stock. My findings suggest that public company boards should also limit unloading to strengthen the CEO pay-performance link. Furthermore, regulators should require public companies to disclose CEO stock holdings prominently. Both current law and post-crisis rulemaking emphasize transparency in pay levels rather than incentives, a focus that perversely encourages directors to weaken the relationship between CEO pay and performance.

The New Investor

A sea change is happening in finance. Machines appear to be on the rise and humans on the decline. Human endeavors have become unmanned endeavors. Human thought and human deliberation have been replaced by computerized analysis and mathematical models. Technological advances have made finance faster, larger, more global, more interconnected, and less human. Modern finance is becoming an industry in which the main players are no longer entirely human. Instead, the key players are now cyborgs: part machine, part human. Modern finance is transforming into what this Article calls cyborg finance.

This Article offers one of the first broad, descriptive, and normative examinations of this sea change and its wide-ranging effects on law, society, and finance. The Article begins by placing the rise of artificial intelligence and computerization in finance within a larger social context. Next, it explores the evolution and birth of a new investor paradigm in law precipitated by that rise. This Article then identifies and addresses regulatory dangers, challenges, and consequences tied to the increasing reliance on artificial intelligence and computers. Specifically, it warns of emerging financial threats in cyberspace, examines new systemic risks linked to speed and connectivity, studies law’s capacity to govern this evolving financial landscape, and explores the growing resource asymmetries in finance. Finally, drawing on themes from the legal discourse about the choice between rules and standards, this Article closes with a defense of humans in an uncertain financial world in which machines continue to rise, and it asserts that smarter humans working with smart machines possess the key to better returns and better futures.

The Fate of the Collateral Source Rule After Healthcare Reform

The passage of the Patient Protection and Affordable Care Act (PPACA) brought vast changes to the world of health insurance. Although much of the focus has been on the individual mandate provision’s constitutionality, this Comment explores a less- mentioned but equally important implication of PPACA: a change to the rationales behind the common law collateral source rule. The collateral source rule allows an insured plaintiff to recover medical damages in the amount that the medical provider bills, regardless of the fact that the plaintiff ’s medical provider likely accepted a lesser amount from the plaintiff ’s insurance company as payment in full. This Comment argues that because PPACA provisions weaken, if not eliminate, at least two of the rationales behind the collateral source rule, courts should calculate medical damages by factoring in the amount the insurance company paid to the provider and a percentage of the health insurance premiums that the plaintiff paid, calculated based on the extent of the plaintiff ’s injury.

A New Strategy for Neutralizing the Gay Panic Defense at Trial: Lessons From the Lawrence King Case

This Comment contributes to the legal scholarship on the gay panic defense by proposing that, in light of social science research on implicit bias and the foundational clinical data on gay panic as a psychological phenomenon, prosecutors highlight the inconsistencies between the psychology underlying gay panic and gay panic as a legal claim in the presence of the jury. This Comment recognizes that gay panic may very well exist as a legitimate psychological condition. Gay panic should not, however, be an effective means for reducing a defendant’s culpability for killing a gender-nonconforming individual because of homophobic bias. This Comment offers its proposal in the context of the recent trial of teenager Brandon McInerney for the murder of his openly gay, effeminate classmate, Lawrence King. In this sad California case, despite the social advances in favor of the LGBT community and the introduction of California’s Gwen Araujo Justice for Victims Act, antigay stereotypes apparently operated in the jurors’ minds.