UCLA Law Review Volume 61, Issue 2


Negotiating Nonproliferation: International Law and Delegation in the Iranian Nuclear Crisis

The Iranian nuclear crisis reflects international worries about Iran’s intentions in developing a nuclear energy program with potential military applications. This Article suggests that strengthening existing international institutions to more effectively provide ongoing verification of the civilian character of the Iranian program offers a diplomatic avenue of resolving this crisis. The nonproliferation regime includes safeguards to detect and deter the diversion of nuclear materials from civilian applications to weapons programs. The question of how to strengthen these safeguards to ensure that Iranian nuclear activities are verifiably proliferation resistant is at the heart of resolving the current crisis.

This Article shows that there is an identifiable compromise position that would address the concerns of the international community while enabling Iran to claim what it views as its right to nuclear energy. Yet despite this available avenue of compromise, missed negotiating opportunities have prolonged the crisis. Drawing on recent scholarship in the areas of negotiation theory and international delegations, this Article suggests an alternative approach to overcoming the conflict. By structuring negotiations around persuasive information, adopting an iterative and reciprocal negotiating structure, and strengthening the role of the International Atomic Energy Agency (the IAEA), the parties could address many of the challenges that undermined previous rounds of negotiations. Further, a delegation to the IAEA of greater authority over implementing safeguards in Iran will set an important precedent for strengthening the verification and monitoring capacities of the organization, enabling it to facilitate resolution in the instant case and to better address any future crises involving potential proliferators.

Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing

While there has been a great deal of focus on who may be detained in the armed conflict with al-Qaeda and associated forces (the so-called war on terror), there has been relatively little consideration of how long the government may hold individuals. The Article provides a new approach to this issue. It argues that review of long-term terrorism detentions should be addressed not merely through application of the laws of war, which permit detention until the end of a conflict, but should also draw on principles rooted in criminal sentencing.

The Article makes two main points: First, criminal sentencing highlights the value of a judicial proceeding focused on the length of detention, and second, the United States should develop a detention standard that incorporates a broader range of factors about an individual, his background, and past conduct to assess whether the government should continue to hold him. This standard may be utilized whether review of continued detention takes place in a judicial or an administrative proceeding.

The Article not only seeks practical solutions to the seemingly intractable problems posed by the detention of terrorism suspects at Guantánamo Bay Naval Base. It also attempts to reframe the larger debate surrounding the war on terror by demonstrating how traditional legal concepts, such as those governing the detention of combatants, must be adapted given the nature of the armed conflict the United States is waging.

Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection

Consumer protection in most domains of financial regulation centers on transparency. Broadly construed, transparency involves making relevant information available to consumers as well as others who might act on their behalf, such as academics, journalists, newspapers, consumer organizations, or other market watchdogs. By contrast, command-and-control regulation that affirmatively limits financial firms’ products or pricing is relatively uncommon. This Article describes an anomalous inversion of this pattern: While state insurance regulation frequently employs aggressive command-and-control consumer protection regulation, it typically does little or nothing to promote transparent markets. Rather, state lawmakers routinely either completely ignore transparency-oriented reforms or implement them in a flawed manner. While acknowledging the limits of transparency-oriented consumer protection regulation, this Article argues that the lack of transparent insurance markets reflects a pervasive and unappreciated flaw in state insurance regulation. Despite their limitations, transparency-oriented regulatory strategies are an important complement to other more aggressive regulatory tools because they can promote consumer choice, harness market discipline, and ensure regulatory accountability in ways that more aggressive regulatory tools often cannot. In order to promote more transparent insurance markets, the Article argues that the jurisdiction of the Consumer Financial Protection Bureau should be expanded to encompass consumer protection in insurance.

California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy

California recently passed bans on openly carrying an unloaded gun in public, but these bans may ironically result in increased concealed carrying of loaded guns in public. Before the recent string of mass shootings in Arizona, Colorado, and Connecticut, and before the U.S. Senate’s failed effort to pass gun control legislation, California strengthened its already strict gun control framework by passing Assembly Bill (A.B.) 144 and A.B. 1527. A.B. 144, which took effect in January 2012, bans individuals from openly carrying unloaded handguns. A.B. 1527, which took effect in January 2013, bans individuals from openly carrying unloaded rifles and shotguns. Gun rights groups argue that, with these bans in effect, a person can carry a gun in public only if she obtains a concealed carry weapons (CCW) permit. But because such permits are difficult to obtain in highly populated counties, the groups further argue that the discretionary permitting process infringes on what they view as a person’s Second Amendment right to carry in public.

But the gun rights groups overlook the fact that the bans on both unloaded and loaded open carry have an exception for when a person reasonably believes that any person or any person’s property is in immediate, grave danger. Two federal district courts in California relied on this exception to uphold the CCW permitting process before the passage of A.B. 144 and A.B. 1527. Assuming that there is a right to carry a gun in public for self-defense against a specific threat, a court would likely rely on this exception to uphold again the CCW permitting process even with the new unloaded open carry bans. But their constitutionality is not guaranteed. California’s passage of A.B. 144 and A.B. 1527 has thus made its concealed carry framework vulnerable to another constitutional challenge. Nevertheless, given the federal government’s failure to move forward on gun control, California’s risky move may be necessary to push forward both the statewide and nationwide gun control movements.

Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline

Punitive school discipline procedures have increasingly taken hold in America’s schools. While they are detrimental to the wellbeing and to the academic success of all students, they have proven to disproportionately punish minority students, especially African American youth. Such policies feed into wider social issues that, once more, disproportionately affect minority communities: the school-to-prison pipeline, high school dropout rates, the push-out phenomenon, and the criminalization of schools.

Before such pervasive racial inequality can be addressed effectively, the social and the psychological mechanisms that create racial inequality in the first place must be examined. This Comment offers insights from the field of Critical Race Theory on the root causes for racial inequality in American society more broadly, and in the context of school discipline more specifically. It argues that racial stigmatization, stereotyping, and implicit biases that are based on a long history of racial prejudice in the United States continue to infuse seemingly objective standards of what is considered appropriate behavior, as well as the practices—such as punitive school discipline—that are used to enforce such standards.

Because a comprehensive remedy to these systemic issues cannot be expected to come from efforts in the courts, advocates will have to rely on alternative strategies to soften and to reverse the negative impact that punitive school discipline imposes on students, especially minority students. This Comment proposes disciplinary practices based on the concept of Restorative Justice as a promising alternative to current disciplinary policies. It argues that Restorative Justice–based disciplinary policies are consistent with core principles of Critical Race Theory and are more conducive to creating a nurturing, safe, and inclusive school environment that not only keeps children in school but also helps to undermine the sources of racial conflict and of racial inequality that have plagued this nation for too long.