UCLA Law Review Volume 57, Issue 4

Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking

Judicial and scholarly descriptions of the deterrent power of civil rights damages actions rely heavily on the assumption that government officials have enough information about lawsuits alleging misconduct by police officers that they can weigh the costs and benefits of maintaining the status quo. But no one has looked to see if that assumption is true. Drawing on extensive documentary evidence and interviews, this Article finds that officials rarely have much useful information about suits alleging misconduct by their officers. Some departments systematically ignore information from suits. Technological kinks, employee error, and blatant efforts to sabotage combine to undermine other departments’ limited efforts to gather information. Yet, those law enforcement agencies with systems to gather and analyze probative data have used that information to reduce the likelihood of future misconduct. Just as informational regulation has been used to improve corporate, medical, and financial behavior, more robust and effective information policies and practices can increase the impact of lawsuits on law enforcement behavior. In the meantime, however, descriptions of deterrence—and the prescriptions that follow—must be recalibrated to reflect the current relationship between litigation, information, and decisionmaking.

The False Promise of the Mixed-Income Housing Project

Since 1970, mixed-income (inclusionary) housing projects have proliferated in the United States. In a community of this sort, only some of the dwelling units, perhaps as few as 10 to 25 percent, are targeted for delivery of housing assistance. Eligible households that successively occupy these particular units pay below-market rents, while the occupants of the other units do not. This article situates this innovation within the broader history of U.S. housing policy and evaluates its merits. I contend that the mixed-income project approach, while superior to the traditional public housing model, is in almost all contexts distinctly inferior to the provision of portable housing vouchers to needy tenants. Although prior commentators also have touted the voucher approach, I enrich their analyses by addressing more fully the social consequences of various housing policies that might be used to economically integrate neighborhoods and buildings. It has traditionally been thought that enhancing socioeconomic diversity within a neighborhood has unalloyed social benefits. Many recent social-scientific studies present a more complex picture and weaken the case for government support of mixed-income projects.

The Upside of Intellectual Property’s Downside

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This Article turns the traditional discussion on its head and shows that intellectual property’s putative costs can actually be benefits. It does so by recognizing that not all innovation is good—that there are certain industries that society may prefer to suppress. If intellectual property reduces production and impedes innovation in those industries, then its protection would be a net gain for society. We examine a handful of such industries (tax planning, biotechnology, fashion, and pornography) and demonstrate that keeping (or bringing) them under the intellectual property umbrella may be the best way to stifle them. In short, we describe the circumstances under which intellectual property’s downside is society’s upside.

Revising the Revision: Procedural Alternatives to the Arbitration Fairness Act

In the past decade, debate on the fairness of pre-dispute agreements to arbitrate has intensified. Recently, Congress has joined the chorus of opposition to these agreements and is attempting to outlaw them via the proposed Arbitration Fairness Act (AFA). Both proponents and critics of the AFA, including certain members of Congress, take hard-line stances on the perceived ills or benefits of arbitration rather than trying to address some of its criticisms while simultaneously preserving some of its benefits. The purpose of this Comment is twofold: first, it is a response to Congress’ rash and overbroad response to outlaw pre-dispute agreements; second, it is an attempt to salvage some of the benefits of pre-dispute agreements while ameliorating some of the critics’ concerns about its pitfalls. This Comment proposes that businesses should shoulder the costs associated with arbitration and that an institutional middle-man should be involved in arbitral proceedings. These proposals will help both balance the disproportionate influence of businesses in the proceedings and eliminate the potential for arbitrator bias with which critics and Congress take issue.

Melville B. Nimmer Memorial Lecture: Facts and the First Amendment

Each year, the UCLA School of Law hosts the Melville B. Nimmer Memorial Lecture. Since 1986, the lecture series has served as a forum for leading scholars in the fields of copyright and First Amendment law. In recent years, the lecture has been presented by many distinguished scholars. The UCLA Law Review has published these lectures and proudly continues that tradition by publishing an Article by this year’s presenter, Professor Frederick Schauer.