Enterprising equality: How UCLA Law students explore artful ways of applying the law

May 24, 2023
Jon Michaels
Jon Michaels

Charlie Kelsey ’23 came to UCLA School of Law with an international background and global perspective. Born in London to British parents, he immigrated to the United States at age seven and became a citizen at 17. Today, with many family members still living in England, Wales, Scotland, Belgium, Luxembourg and France, the recent graduate considers a matter that traverses national borders but has gained pertinence in this country: how the increasingly blurred lines between public and private power interact with broad instances of inequality.

“As someone with multiple passports, a widely scattered family and lots of experience visiting and living in other countries, I’ve always wondered about the potential for business as a globally unifying force and conduit for positive change,” says Kelsey, who will work as a corporate lawyer at Simpson Thacher & Bartlett in Los Angeles after he passes the bar exam.

Fortunately for Kelsey, the lessons that he sought are the same ones that Professor Jon Michaels grapples with in his scholarship and signature seminar, the Entrepreneurial State, through which, as its course description explains, students examine “the increasing powerful theory and practice of ‘running government like a business.’” The class considers “local, state, and federal case studies in which government operates through businesses, according to business principles, and as if it were a for-profit (or at least revenue-generating) enterprise.”

“I was drawn to Professor Michaels and this class because I wanted to better understand the role of private power in the United States and how it fits alongside federal, state and local governments,” Kelsey says. “Of course, big business is not always – or even usually – associated with unity or positive change, and the first step was understanding how and why that is. But we also looked at innovative ways in which businesses could be used to address the various problems facing our country.”

Michaels’s research focuses primarily on democratic equality and how that goal is undermined by the uneven distribution of economic, race and political capital. He wrote the book Constitutional Coup: Privatization’s Threat to the American Republic (Harvard University Press, 2017) and is working on a book tentatively titled Vigilante Nation with David Noll. He has been teaching the seminar in various iterations since he joined the UCLA Law faculty in 2008.

“For most of that time, the course dealt with sophisticated but wonky questions of institutional design of public, private, and public-private, or hybrid, organizations,” Michaels says. “But increasingly, as our democracy continues to teeter, I’ve shifted to centering more of the readings and assignments on big, pressing problems. My goal is for students to apply the specific – and still wonky – tools we’ve been using all semester to confront those urgent problems, emphasizing innovative designs that help overcome some, if not most, of the political and legal obstacles that stand in the way of straightforward reform.”

Timely teaching

In the Entrepreneurial State, Michaels and his students regularly leverage the course’s innovative attitude to respond directly to matters at the top of the news. During the 2022-23 school year, this meant that they focused on three main issues: reparations for past wrongs in California; using market tools to resist repressive forms of governmental power; and taking seriously a national partition or confederation of states.

Readings, discussions and lectures on these topics marked the time that they spent in their virtual classroom, which went fully remote at the start of the pandemic and remains so, thus allowing high-profile guest speakers to attend. For instance, toward the end of the year, Brynn Tannehill, a leading scholar on American authoritarianism, joined the class to survey an array of views on if the United States will physically remain a single nation – and whether it should.

Other projects grew out of the work that they collaborated on in class, including, for several students, papers that they wrote to complete their Substantial Analytic Writing, or SAW, graduation requirement, with Michaels as their advisor. Kelsey, for one, crafted a SAW paper “on private prisons and other privatized elements of the criminal justice system,” he says, “posing several private concepts that might be valuable for government entities to consider as we continue to work toward fixing our deeply flawed carceral and criminal justice system.”

Further discussions on the topic included an exploration of so-called company towns where administrative practices would avoid the extreme implementation of oppressive state or local laws regarding guns, abortion or immigration.

John Vihlen ’23 recalls a discussion on the recent use of privatization in Westport, Missouri, to regulate guns. After the state legislature passed a law to deregulate firearms, gun-related crimes spiked. So, businesses formed a coalition to buy sidewalks from the city and therefore transform them into private property where they could control guns with metal detectors and other measures. This soon led to a decrease in gun crimes.

“We could see how privatization could be used to address policy and constitutional failures in other areas,” says Vihlen, who came to UCLA Law from Florida and will work at Orrick, Herrington & Sutcliffe in San Francisco after he passes the bar exam. “Although I plan to do general litigation and intellectual property, I’m nonetheless very much interested in civil rights work and pro bono outreach, and so I hope that having a deeper understanding of this subject matter could be helpful in whatever cases might come my way as a future attorney.”

Vihlen enrolled in the seminar after “having lived through several years of a deadlocked government and increasing political polarization – I was interested in seeing what innovative or alternative routes looked like as far as addressing government failures.” Through the course, he gained a fuller understanding of how private entities like social media companies can “meaningfully address anti-science propaganda, election disinformation or hate speech,” or how non-government entities like private universities have looked at a need for reparations and instituted programs to support the descendants of enslaved people.

When it came to the unit on reparations, Michaels’s work outside of class created a fruitful and informative in-seminar experience. In February, he offered testimony to California’s Reparations Task Force, on what he determined to be the main design and governance issues in the task force’s preliminary recommendations for a system of reparations in the state. Several weeks later, Kamilah Moore, who chairs the task force, presented a lecture to the students before engaging in an energetic question-and-answer session.

This part of the class was especially valuable for Sinethemba Memela, LL.M. ’23, a lawyer from South Africa who joined UCLA Law as a Sonke Health and Human Rights Fellow after spending years working on related matters at the South African Human Rights Commission. There, Memela monitored and assessed “the South African government’s programs aimed at realizing socio-economic rights and redressing the injustices of the past and then providing policy recommendations as required in the South African Constitution.”

“This class has given me a framework within which to understand global poverty and inequality and the role that the government should play in mediating these ‘market failures,’” Memela says. “I took the course in order to gain a better understanding of how privatization impacts government and learned not only that but also how to design targeted government programs. The design element of the course is something quite unique and unexpected but critical. We reviewed a wide array of social programs and had an opportunity to assess what works and what doesn’t, and why they work or don’t.”

‘He treated me as an equal’

In the spring of 2020, Emme Tyler ’21 was a 2L enrolled in two courses that Michaels teaches: the Entrepreneurial State seminar and Administrative Law. “I enjoyed both classes, but I was convinced that Professor Michaels didn’t like me,” she says now, lightly. “I’m kind of intense and have high bandwidth. I went to office hours quite a bit and often asked questions beyond the scope. I was also pretty sure that he didn’t always ‘get’ the comments I made in class.”

But she loved the coursework, which matched the enthusiasm that she brought. “The seminar was great,” she says. “We read articles on all sides of an issue. Professor Michaels has biases. He acknowledges them upfront and challenges students to do the same.”

When the semester was over, Michaels emailed Tyler to see if she would be interested in serving as his research assistant – and to encourage her to pursue judicial clerkships. (Earlier in his career, Michaels had clerked for Judge Guido Calabresi on the U.S. Court of Appeals for the Second Circuit and then for Justice David Souter on the U.S. Supreme Court.) “I was baffled,” Tyler says. “I thought he hated me!”

To the contrary, the pair developed a connection that shifted from one between teacher and student to one of scholarly collaborators. “He had a sense of what he wanted to write, but he treated me as an equal and considered seriously any ideas or points I raised,” says Tyler, who is an associate at O’Melveny & Myers in New York, clerked for Judge Alvin Hellerstein on the U.S. District Court for the Southern District of New York, and is embarking on a clerkship with Judge Morgan Christen on the U.S. Court of Appeals for the Ninth Circuit in Alaska.

This spring, the Indiana Law Journal published the article that she co-wrote with Michaels, “Just-Right Government: Interstate Compacts and Multistate Governance in an Era of Political Polarization, Policy Paralysis, and Bad-Faith Partisanship.” The piece has its roots in their seminar work and later collaboration – and it echoes much of what Michaels continues to explore with his Entrepreneurial State students.

“Besides being really smart and interesting, the students are resilient. Many have had challenging life experiences and quite a few more, who have had easier roads, are nonetheless strong and empathetic allies,” Michaels says. “I always tell them that I’m not preparing them to be good junior associates, staff attorneys or judicial clerks. I’m preparing them to be senior counselors, program directors, legislators and judges. I want them to think boldly and expansively, to use conventional tools, authorities and methodologies but not be beholden to them, and to figure out a way to be doggedly principled yet strategically flexible.

“I’m not sure any of this makes them better law students or lawyers. But it ought to make them more nimble and more valuable contributors to a society in which law is an essential tool to promote security, equity or prosperity.”

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