UCLA Law Review Volume 60, Issue 5

First Amendment Constraints on Copyright After <em>Golan v. Holder</em>

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 Neil Weinstock Netanel.

Intraracial Diversity

Once again, the U.S. Supreme Court will determine the constitutionality of affirmative action.  Once again, the focus will be on the diversity rationale for the policy.  And, once again, the discussion will likely center on whether the admissions regime of a particular school (this time, the University of Texas) can take steps to ensure that it admits a certain number—or to put the point more doctrinally, a critical mass—of students from a particular racial group, such as African Americans.  Framing diversity in terms of group representation assumes that when admissions officials administer affirmative action programs, their racial decisionmaking stops at the level of the racial group.  Under this view, admissions officials are simply interested in whether they have a critical mass of African Americans as a group.  The racial interests of these officials, however, might be narrower than that.  Especially at elite colleges and universities, admissions officials are also likely employing an intraracial diversity frame.  Here, the concern is not simply whether there is a critical mass of African Americans as a group.  The concern is also whether the school has admitted particular “types” of African Americans.  For example, a school might screen its application pool for African Americans who are likely to promote racial cooperation and understanding.  Alternatively, the school might be interested in African Americans who can facilitate the robust exchange of ideas.  The point is that admissions officials can realize their commitment to diversity by choosing African Americans at least in part based on their perceived racial “types” and not simply based on their racial group membership.  This Article demonstrates precisely how they can do so, describes the incentive system this creates for applicants to work their identity in the application process to signal that they are the right racial “types,” and explains how the phenomenon of intraracial diversity is implicated in the Fisher v. University of Texas litigation.

When to Overthrow your Government: The Right to Resist in the World’s Constitutions

On December 17, 2010, a young Tunisian street vendor protesting an abusive police official set off a wave of democratic uprisings throughout the Arab world.  In rising up against their governments, the peoples of the Arab countries were confronting an age-old problem in political theory: When is it acceptable to rise up against an unjust authority?  This question is not only of great importance to the peoples of the Middle East today but was also of profound interest to the American founders and, through them, has informed the very basis of modern constitutionalism.  It is perhaps unsurprising then that many countries’ constitutions allow the people to challenge or overthrow their governments under certain circumstances.  But to date, little systematic and empirical analysis has been done on the prevalence of this so-called right to resist in national constitutions or on what motivates constitutionmakers to adopt such a right.
This Article takes up the task.  It presents an original dataset on right-to-resist provisions in all national constitutions written since 1781, tracing such provisions’ historical trajectory and demonstrating how they have proliferated in recent decades.  The Article moreover provides the first-ever empirical exploration of why it is, exactly, that constitutionmakers give their people a constitutional mandate to overthrow or contradict their governing authorities—likely those very authorities elsewhere empowered by the same constitution.  Drawing on a range of real-world examples as well as regression analysis, we show that right-to-resist provisions are most likely to be first established following a disruption of the previous constitutional order, either through popular democratic transition or through a violent political break such as coup d’état.
These findings suggest that the constitutional right to resist serves a dual function, depending on its context.  On the one hand, the constitutional right to resist can represent a fundamentally democratic and forward-looking tool that constrains future government abuse, empowers the national citizenry, and acts as an insurance policy against undemocratic backsliding.  On the other hand, the right can serve as a backward-looking justification for coupmakers who seek retroactive legitimacy for whatever political crimes placed them in a position to make a new constitution in the first place.  Which of these two functions prevails may be in large part regionally determined.  Latin American constitutionmakers primarily adopted the right to resist in the aftermath of coups d’état, while in other parts of the world the right to resist functions as a precommitment device against undemocratic backsliding.
Our findings have significant implications for our broader understanding of constitutionalism.  Ostensibly, at the heart of any constitution lies a wish to bind the future on behalf of the present.  Yet our findings suggest that, at least in some cases, constitutional provisions may also serve the function of reinterpreting and justifying the past.  At least as far as the right to resist is concerned, constitutions are as much about yesterday as they are about tomorrow.

Interbank Discipline

As banking has evolved over the last three decades, banks have become increasingly interconnected.  This Article draws attention to an effect of this development that has important policy ramifications yet remains largely unexamined—a dramatic rise in interbank discipline.  The Article demonstrates that today’s large, complex banks have financial incentives to monitor risk taking at other banks.  They also have the infrastructure, competence, and information required to be fairly effective monitors and mechanisms through which they can respond when a bank changes its risk profile.  Interbank discipline thus affects bank risk taking, discouraging banks from taking some types of risk while potentially encouraging the assumption of others.  Given its influence, ignoring the phenomenon can lead to inefficiencies and gaps in bank regulation.

The rise of interbank discipline has positive and negative ramifications from a social welfare perspective.  The good news is that self-interested banks may be expected to penalize a bank when it takes excessive risks, thereby deterring such risk taking.  The bad news is that the interests of banks and society are not always so well aligned.  Other banks, for example, may be expected to reward a bank when it changes its risk profile in a way that increases the probability that the government would bail the bank out rather than allowing it to fail.  This is because a bailout protects a bank’s counterparties and other creditors, even though socially costly.  Interbank discipline may thus encourage banks to alter their activities in ways that increase systemic fragility.

In drawing attention to the powerful yet mixed effects of interbank discipline on bank activity, this Article contributes to a new generation of scholarship on market discipline.  Its aim is not to question whether we need regulation, but to address the pressing issue of how we should allocate inherently finite regulatory resources.  By reducing the regulatory resources devoted to activities that other banks are performing relatively well, increasing the resources devoted to activities that regulators are uniquely situated or incented to address, and seeking to counteract the adverse effects of interbank discipline, bank oversight could be redesigned to more effectively promote the stability of the financial system.

A Proposal for U.S. Implementation of the Vienna Convention’s Consular Notification Requirement

The Vienna Convention on Consular Relations (Vienna Convention), to which the United States is a party, requires signatories to notify the consulates of and to grant consular officers physical access to foreign criminal defendants.  While the treaty has mostly functioned well for its states parties, the United States has recently encountered substantial problems—and international ill will—for its failure to comply with these requirements.

The language of the Vienna Convention reflects the historical and geopolitical landscape that existed in 1963—one in which the pace of immigration was at a relative lull and Cold War spy games, not state-level capital offenses, were top priority.  Not long after the Vienna Convention’s drafting, changes in U.S. immigration policy drastically increased the number of noncitizens and, in turn, foreign criminal defendants.  Yet because the consular notification and access requirement applies to each foreign criminal defendant in the United States, no matter the severity of the crime, American authorities today cannot feasibly enforce its provisions.

The United States must preserve its reputation for observing its international obligations if it intends to invoke the Vienna Convention when its own citizens are detained abroad.  This Comment proposes that the United States and high-priority partner countries enter into a series of bilateral modifications to the Vienna Convention that limit the scope of the notification requirement to foreign criminal defendants charged with capital offenses.  This solution would lessen the administrative and logistical costs of American compliance with the Vienna Convention while granting consular officials access to their foreign nationals detained in U.S. custody—including the 143 noncitizens on death row across the country.