UCLA Law Review Volume 58, Issue 2


Revolution in Progress: Third-Party Funding of American Litigation

There is a growing phenomenon of for-profit investment in U.S. litigation. In a modern twist on the contingency fee, third-party lenders finance all or part of a plaintiff’s legal fees in exchange for a share of any judgment or settlement in the plaintiff’s favor. There are a number of international corporations, both public and private, that invest exclusively in this new “market.” Critics contend that third-party litigation finance violates the common law doctrines of “maintenance,” or interference in a legal proceeding by a stranger to the suit, and “champerty,” or maintenance for profit. Critics also raise numerous arguments based on the purported negative consequences of a widespread system of third-party finance. These include serious ethical considerations, the possibility of compromising attorney-client privilege, and an alleged tendency to encourage frivolous lawsuits while discouraging settlement. This Comment argues that these critiques are flawed and that third-party litigation finance should be permitted but regulated to guard against its fairly limited dangers. I argue, first, that the common law doctrines of maintenance and champerty are inconsistent with our contemporary view of litigation. Over the past century, Americans have come to see lawsuits as a valid means of settling personal disputes, vindicating individual rights, and correcting social ills. Moreover, the procedural reforms of the early twentieth century were designed to liberalize rather than limit access to the courts. I conclude that third-party litigation finance is in keeping with our current values because it facilitates the filing of claims that might otherwise go unheard. This Comment contends, therefore, that such agreements should be legal and enforced in the United States. Finally, I suggest that the potential adverse consequences of the practice are in most cases unlikely to occur, and in cases where negative consequences are likely, they can be effectively addressed through enforcement of existing ethical and procedural guidelines or by adoption of new regulations.

Shooting the Messenger: How Enforcement of FLSA and ERISA Is Thwarted by Courts' Interpretations of the Statutes' Antiretaliation and Remedies Provisions

Two pillars of employment law—the Fair Labor Standards Act (FLSA) and the Employee Retirement Income Security Act (ERISA)—rely on employee complaints to detect and cure violations by employers. However, enforcement of these statutes is undermined by three circuit splits that place employees with personnel duties in an unenviable position: While their job duties require them to report FLSA and ERISA violations, they often are not protected from retaliation when fulfilling these duties. First, some employees are left unprotected by a circuit split over whether FLSA’s antiretaliation provision protects internal complaints, that is, complaints made by one employee to another, usually a supervisor, about a potential employer violation. Yet even among those circuits that protect internal complaints, several circuits adopt an exception that excludes employees with personnel duties from FLSA protection. This circuit split over FLSA has recently metastasized to ERISA, resulting in a second circuit split over whether ERISA protects internal complaints. The problem is compounded by a third circuit split over whether ERISA provides any monetary remedy—specifically backpay—to a victim of retaliation. Certain circuits’ holdings that backpay is unavailable under ERISA, combined with ERISA’s preemption of state laws that offer more generous remedies, leave some plaintiffs with no monetary relief for retaliation. This Comment fills a void in legal scholarship by proposing the following solution. First, it argues that the text of FLSA is at least ambiguous regarding whether the statute protects internal complaints, including those made by employees with personnel duties, but that the legislative history clearly militates in favor of such protection. Next, it argues that protection of such complaints under FLSA will likely lead to their protection under ERISA. But because this solution forces employees who report ERISA violations to suffer the complete preemption of their state law remedies, this Comment also posits a legal theory—equitable restitution—under which ERISA remedies can include monetary relief.

Seeing Through Colorblindness: Implicit Bias and the Law

Once upon a time, the central civil rights questions were indisputably normative. What did “equal justice under law” require? Did it, for example, permit segregation, or was separate never equal? This is no longer the case. Today, the central civil rights questions of our time turn also on the underlying empirics. In a post–civil rights era, in what some people exuberantly embrace as post-racial, many assume that we already live in a colorblind society. Is this in fact the case? Recent findings about implicit bias from mind scientists sharply suggest otherwise. This Article summarizes the empirical evidence that rejects facile claims of perceptual, cognitive, and behavioral colorblindness. It then calls on the law to take a “behavioral realist” account of these findings, and maps systematically how it might do so in sensible, nonhysterical, and evidence-based ways. Recognizing that this call may be politically naive, the Article examines and answers three objections, sounding in “junk science” backlash, “hardwired” resignation, and “rational” justification.

Racial Territoriality

Law treats race as a characteristic of individuals. Applying insights from social science, this Article argues that places can also have a racial identity and meaning based on socially engrained racial biases regarding the people who inhabit, frequent, or are associated with particular places and racialized cultural norms of spatial belonging and exclusion. This racial meaning has consequences that constitutional law often overlooks. One consequence is “racial territoriality,” a distinctive form of discrimination in which people of color are excluded from public spaces that are identified as “white” and treated as being only for white people. This Article conceptualizes a definition of racial territoriality and demonstrates the weaknesses of constitutional doctrine as it applies to racially territorial behavior. Based upon the historic use of spatial separation to subjugate people of color and interdisciplinary research about the social significance of space, the Article advances a new claim that law should take the racial identifiability and cultural meaning of spaces into account when judging intentional racial discrimination. It proposes two approaches to the problem of racial territoriality—one that courts can comfortably integrate into existing equal protection doctrine and a second, more rigorous legislative remedy. Both options contemplate that law specifically—and state actors generally—take more explicit account of the exclusion of people of color from territorialized “white” space. The Article uses several examples to explore this new framework and its practical application. Ultimately, the Article seeks to illuminate the importance of space and racial geography in antidiscrimination discourse. Its goal is to situate spatial belonging as a central theme in the continuing conversation about structural racial disadvantage and to focus attention on racially exclusionary norms that are reinforced by spatial allocations of power.

Officious Intermeddlers or Citizen Experts? Petitions and Public Production of Information in Environmental Law

Commentators have bemoaned the role that petitions and citizen suits play in driving the regulatory agendas of environmental agencies. The argument is that these forms of public participation too frequently distract agencies from the priorities that experts believe should be the focus of regulatory efforts. Using data from the listing of species protected under the U.S. Endangered Species Act, we examine whether petitions and citizen suits result in suboptimal agenda-setting by agencies. We find that petitions and litigation result in the identification of species that are at least as deserving of protection under the Act as species identified by the agency on its own. Our results raise the possibility that public participation, by collecting diffuse information about environmental conditions, might help improve the performance of environmental agencies.