UCLA Law Review Discourse, Volume 61


The Fifth Amendment, Encryption, and the Forgotten State Interest

This Essay considers how the Fifth Amendment’s Self-Incrimination Clause applies to encrypted data and computer passwords. In particular, it focus-es on one aspect of the Fifth Amendment that has been largely ignored: its aim to achieve a fair balance between the state’s interest and the individual’s. This aim has often guided courts in defining the Self-Incrimination Clause’s scope, and it should continue to do so here. With encryption, a fair balance requires permitting the compelled production of passwords or decrypted data in order to give state in-terests, like prosecution, an even chance. Courts should therefore interpret Fifth Amendment doctrine in a manner permitting this compulsion.

Football and the Infield Fly Rule

In a previous article, I defended baseball’s infield fly rule, the special rule long beloved by legal scholars, in terms of equitable balance in distribution of costs and benefits between competing teams. This essay applies those cost-benefit and equity insights to football. It explores several plays from recent Super Bowls, the cost-benefit balance on those plays, and the appropriate role in foot-ball for limiting rules similar to the infield fly rule.

<em>Alleyne v. United States</em>, Age as an Element, and the Retroactivity of <em>Miller v. Alabama</em>

The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles was cruel and unusual punishment in violation of the Eighth Amendment.  The million-dollar question was whether it would do any good for the over 2000 juveniles who had previously been so sentenced.  The touchstone of Miller’s retroactivity hinges on the question of whether the rule it announced is substantive—and therefore retroactive—or procedural. 

The quasi-substantive/quasi-procedural nature of the Miller opinion created a conundrum for lower courts, which have split on the retroactivity question, with several additional jurisdictions yet to decide.  As detailed in this Essay, the answer to this puzzle comes from an unlikely source: the Court’s Sixth Amendment jury-trial jurisprudence, and particularly its June 2013 interpretation of that right in Alleyne v. United States.  Though unrelated to both juvenile sentencing and retroactivity, the Alleyne Court determined that where the existence of a fact dictates whether a mandatory minimum applies, the fact acts as an element of the underlying offense.  This Essay extrapolates from the Alleyne holding and argues that Miller’s requirement that sentencers consider age and its attendant consequences in cases involving juveniles—making age at the time of the offense a fact that triggers whether the mandatory minimum sentence of life without parole applies—converts age to an element of the underlying offense, rendering Miller a substantive rule that must be applied retroactively.

A Legal “Red Line”? Syria and the Use of Chemical Weapons in Civil Conflict

This Essay analyzes the prohibition on the use of chemical weapons in civil conflicts and applies its findings to the Syrian civil war. We find that international humanitarian law and international criminal law provide a clear ban on the use of chemical weapons in international armed conflict. This prohibition is less clear in noninternational armed conflict, suggesting the need for legal reforms to firmly ban the use of chemical weapons in all armed conflicts. Furthermore, we find the use of chemical weapons in Syria does not, by itself, cross a legal red line justifying military intervention. Instead, the use of chemical weapons is one factor in determining the existence of a humanitarian crisis requiring strong international action.

Fighting Unfair Credit Reports: A Proposal to Give Consumers More Power to Enforce the Fair Credit Reporting Act

Credit reports play a central role in some of our most important transactions, such as buying a house or car, or even getting a job. Yet an alarming number of credit reports contain damaging inaccuracies. The primary purpose of the Fair Credit Reporting Act (FCRA) is to protect consumers against these inaccuracies, but the FCRA also makes it very difficult for consumers to force creditors to fix errors. In particular, there is no private right of action to enforce the creditor’s duty of accuracy unless a consumer first notifies a third party—a consumer reporting agency such as Experian, TransUnion, or Equifax—and unless that agency in turn notifies the creditor. This structure raises significant procedural hurdles for a consumer and can make it extremely difficult to sufficiently plead a cause of action against a creditor. This Essay argues that Congress should change the law to give consumers the private right of action they now lack.

Not the Last Word, but Likely the Last Prosecution: Understanding the U.S. Department of Justice’s Evaluation of Whether to Authorize a Successive Federal Prosecution in the Trayvon Martin Killing

In the aftermath of George Zimmerman’s state court acquittal in the Trayvon Martin killing, the U.S. Department of Justice is considering whether to bring federal criminal charges against Zimmerman arising out of the same incident. While such a dual or successive prosecution does not violate double jeopardy, the determination whether the federal government should bring charges turns on whether the Petite Policy, an internal U.S. Department of Justice Guideline, has been satisfied. Professor Kurland contends that because the requisites of the Petite Policy, that the prior state trial must have left a substantial federal interest demonstrably unvindicated, cannot be established, a federal prosecution should not be authorized. Rather, more appropriate and constructive nonprosecutorial alternatives should be pursued to address the myriad of criminal justice and social policy concerns impacted by the tragic incident.

The View From Below: Public Interest Lawyering, Social Change, and Adjudication

In Public Interest Lawyering: A Contemporary Perspective, Professors Alan Chen and Scott Cummings provide a nuanced and thorough account of the relationship between lawyering and social change.  In this Review Essay, Professor Douglas NeJaime explores how key insights from Chen and Cummings’ textbook could impact the way students approach adjudication, which remains the primary subject of instruction in law school classrooms.  Continuing the marriage equality case study with which Chen and Cummings conclude, NeJaime analyzes the U.S. Supreme Court’s recent decisions inHollingsworth v. Perry and United States v. Windsor through the lens of Public Interesting Lawyering.  He argues that rather than understand the decisions as instances of top-down, court-ordered reform, students would locate the Court’s intervention within a bottom-up, dynamic process of legal and social change.  As Public Interest Lawyering reveals—and as the Court’s approach in Perry and Windsor confirms—lawyers, litigants, and activists, rather than judges, drive that process.

Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law

In this contribution to the Symposium honoring Stephen Yeazell, the author explores the interaction between group litigation and social context in the contemporary setting.  She traces the recent law of class action waivers coupled with mandatory individual arbitration clauses in consumer and employment contracts.  She shows how the Supreme Court’s decisions in AT&T v. Concepcion and American Express v. Italian Colors enable large corporations that impose class action bans on consumer and employees to achieve de facto immunity from decades of hard-won protective legislation.  She concludes that Yeazell’s insight—that the availability of group litigation is intricately linked with a society’s social arrangements—is as true today as it was in the 1970s, when he first examined the issue.

What Evidence Scholars Can Learn From the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict

This short Essay draws three lessons for evidence scholars from Stephen Yeazell’s justly celebrated work in civil procedure. The first lesson is to take history seriously but to be realistic about what it can tell us: to use history to gain perspective, not to recover lost wisdom. The second lesson is to take rulemaking seriously: to think about the processes through which evidence rules are formulated and reformed. The third lesson, and the most important, is to take lawyers seriously, not just as the agents through which procedure is implemented but as drivers and obstructers of reform.

This last lesson is an especially critical one for evidence scholars, because the complexity and opacity of evidence law has meant that lawyers are generally the only ones in a position to improve it. Lawyers’ interests, though, diverge in important ways from society’s interests. In particular, lawyers tend to view uncritically, and sometimes even to celebrate, the extraordinary degree to which our system of adjudication, and evidence law in particular, makes a party’s prospects in litigation hinge on the skills of the party’s lawyer. That feature of evidence rules and of our procedural system more broadly usually passes unnoticed, in large part because lawyers find it not only unobjectionable but deeply attractive. But from society’s standpoint, procedural rules work best—all things being equal—when they make the outcome of litigation turn on the merits of the case, not on the relative skills of the lawyers involved: on who is right and who is wrong and on what justice demands. We ask too rarely whether our procedural rules, including our rules of evidence, place too large a premium on lawyerly skill, and whether the culture of the legal profession, and its attachment to a certain heroic image of the trial lawyer, has warped the way that lawyers have struck that balance.

Procedure and Society: An Essay for Steve Yeazell

Stephen Yeazell’s pathbreaking study of the history of group litigation revealed how disparate societies have shaped the rules of group litigation to meet their own needs. Professor Yeazell thereby demonstrated that procedural rules are socially contingent rather than universal in nature. In this Essay honoring Steve, I transform that lesson into a new approach to joinder rules. Specifically, I argue that if joinder rules arise out of specific social situations, then the simplest approach to joinder is to adopt a default rule calling for the shape of litigation to reflect the shape of the social activity that gave rise to the litigation. Labeling this concept “social loyalty,” I argue that it provides a new way of identifying what cases ought to be adjudicated in the aggregate and a new defense of their aggregation.

Of Groups, Class Actions, and Social Change: Reflections on <em>From Medieval Group Litigation to the Modern Class Action</em>

In this brief commentary celebrating Professor Yeazell’s scholarship, I reflect on his seminal book on the medieval roots of group litigation in the light of global developments and technological change.

Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again

Stephen Yeazell has long recognized that changes to case capitalization affect the nature and intensity of civil litigation. So too, writing back in 2001, Yeazell identified the next wave of capital with the capacity to alter the American litigation landscape: third-party litigation finance. In the ensuing decade, that industry, and specifically what I call the “lawyer lending” industry—comprised of lenders who extend capital to plaintiffs’ lawyers to finance personal injury litigation—has blossomed. Today, firms like Advocate Capital and Counsel Financial channel tens of millions of dollars to plaintiffs’ personal injury lawyers each year and seem poised for further expansion. Picking up where Yeazell left off, this Essay asks: How might the arrival of lawyer lending transform the capitalization, organization, and sophistication of plaintiff-side practice? And how might changes to plaintiff-side practice affect the quantum and character of personal injury litigation in the United States?

The Two-Tiered Program of the Tribal Law and Order Act

The Tribal Law and Order Act of 2010 was intended to significantly expand the sentencing powers of tribal courts, raising the maximum sentence for a given offense from one year to three. But the Act requires courts that would take advantage of these new powers to provide significant procedural protections to criminal defendants, while failing to provide the funding most tribal courts would need to make those protections a reality. Moreover, the Act leaves vague and open to interpretation the precise form those protections should take, which is an open invitation to federal courts to scrutinize tribal court procedure; this, in turn, may put tribal courts in the position of choosing between longer sentences and retaining their traditional character. These two obstacles—lack of funding, and the danger to tribal courts’ unique character— mean that the Act is likely to sort tribes into two “tiers”: wealthier or more assimilated tribes will be able to take advantage of the longer sentences, while tribes that cannot afford (whether financially or culturally) to change their practices will be left unable to adequately sentence serious offenders. And because of the way the Act resolves a longstanding ambiguity in Indian law, some tribes in the latter group may be left with less sentencing power than they had previously.

Vistas of Finance: A Reply to Professor Stephen M. Bainbridge

Finance is undergoing a fundamental and technological shift. In the years ahead, there will inevitably be new financial characters and new financial cliffhangers. In this reply to the response of Professor Stephen Bainbridge to my article, The New Investor, I offer commentary on one particular new financial character, then on the general trope of cliffhangers as they relate to financial regulation.

“Healthcare for All”?: The Gap Between Rhetoric and Reality in the Affordable Care Act

The rhetoric of universal healthcare and healthcare for all that pervaded the healthcare debate culminated in the Affordable Care Act’s (ACA’s) passage. The ACA, however offers reduced to no healthcare services for certain noncitizen groups, specifically: (1) recently arrived legal permanent residents, (2) nonimmigrants, and (3) undocumented immigrants. This Article explores how the ACA fails to ensure healthcare for all. Specifically, the Essay demonstrates the gap between rhetoric and reality by parsing the ACA’s legislative history, and posits reasons for the gap. The ACA’s legislative history suggests that legislators’ biases towards these noncitizen groups, particularly with respect to the idea that they are not “American,” may explain why the ACA fell short of its goal of healthcare for all. The Essay also offers suggestions on how healthcare advocates for these noncitizen groups may use this understanding of the gap to prevail on their agenda.