UCLA Law Review Discourse, Volume 62


How Hall v. Florida Transforms the Supreme Court’s Eighth Amendment Evolving Standards of Decency Analysis

The U.S. Supreme Court’s recent decision in Hall v. Florida may prod states to more meaningfully enforce the protection of individuals with intellectual disabilities that the Court originally set forth in Atkins v. Virginia. But the majority opinion’s reliance on the views and practices of medical experts and psychiatric professionals has overshadowed critical Eighth Amendment doctrinal developments. This Essay argues that Hall v. Florida has quietly but fundamentally transformed the understanding of when it is appropriate for the U.S. Supreme Court to search for a national consensus on an issue under the Eighth Amendment and how the Court determines whether a consensus exists. This Essay represents an early attempt to identify and explore these developments and predicts that Hall’s long-term significance will reach far beyond its narrow yet important holding.

A Critique of Justice Antonin Scalia’s Originalist Defense of Brown v. Board of Education

How would Justice Antonin Scalia, an avowed and prominent originalist, have voted if he were a member of the United States Supreme Court at the time of the Court’s seminal 1954 decision in Brown v. Board of Education? In a public appearance Justice Scalia stated that he would have voted with Justice John Marshall Harlan, the lone dissenter from the Court’s 1896 validation of the separate-but-equal doctrine in Plessy v. Ferguson. Additionally, in his recently published book Justice Scalia stated that Justice Harlan’s dissent in Plessy is “thoroughly originalist,” and in a 1990 dissenting opinion noted that Plessy was “upheld only over the dissent” of Justice Harlan, “one of our most historically respected Justices.” This Article examines and criticizes Justice Scalia’s reliance on Justice Harlan as iconic authority for the proposition that Brown can be squared with Justice Scalia’s original public meaning variant of originalism.

Probabilistic Reasoning in Navarette v. California

In Navarette v. California, the U.S. Supreme Court, in a 5–4 decision au-thored by Justice Thomas, rejected a Fourth Amendment challenge to an investi-gative traffic stop on the grounds that a prior 911 call, in which the caller reported that she had been run off the road by a pickup truck, gave rise to reasonable suspi-cion that the driver of the truck was intoxicated. Writing for the dissent, Justice Scalia argued that the majority could not infer from the 911 call that the driver was drunk, unless it had some basis in reality to believe that the proportion of reckless traffic violations attributable to drunk drivers is at least 1 in 20. In this Essay, I mark the extraordinary occasion of a U.S. Supreme Court Justice quanti-fying the reasonable suspicion standard by using the best available data to esti-mate the conditional probability that the driver of the truck was drunk, given the 911 call. I find that the probability is less than 1 in 20, and indeed closer to 1 in 100. After presenting my analysis, I highlight three important caveats and then close with a brief discussion of the controversial issue of quantification of stand-ards of proof.

Cultural Competency Training: Preparing Law Students for Practice in Our Multicultural World

This article advocates for increased cross-cultural competency training for lawyers. With the increasing diversity in our society and among future lawyers, it is necessary for lawyers to be able to effectively communicate and create trusting relationships with clients from a variety of cultures and backgrounds. Specifical-ly, this article recommends that a seminar be offered in law schools to develop and practice cross-cultural skills in line with The Five Habits: Building Cross-Cultural Competence in Lawyers, developed by Professors Susan Bryant and Jean Koh Peters. Implementation of the proposed seminar would help prepare law students to be culturally competent, successful lawyers.

Reflections on Law Teaching

Each year, the UCLA School of Law presents the Rutter Award for Excellence in Teaching to an outstanding law professor. On March 17, 2014, this honor was given to Professor Jennifer L. Mnookin. UCLA Law Review Discourse is proud to continue its tradition of publishing a modified version of the ceremony speech delivered by the award recipient.

California Constitutional Law: The Guarantee Clause and California’s Republican Form of Government

In the two decades since New York v. United States was decided, commentators have debated what should give rise to a justiciable Guarantee Clause claim. One common argument is that direct democracy inherently conflicts with the requirement, implicit in the Clause, that states provide a republican (representative) form of government. An offshoot of this argument claims that courts should conjure up substantive Guarantee Clause remedies and strike down specific initiatives that infringe individual rights. It is no surprise that California is a frequent target of this criticism.

This Article argues that California’s initiative system, by design and in operation, is aligned with the scope and purpose of the Guarantee Clause, and reinforces rather than undermines the state’s republican form of government. While an initiative can be used to amend the state constitution, laws that fundamentally change the basic governmental plan or framework must pass through the republican strictures of the revision process. Furthermore, the California Supreme Court’s decision in Strauss v. Horton highlights the primary pitfall of stretching the Guarantee Clause beyond its limits to protect individual rights. At its core, the Clause is directed at the structure of state government. Individual rights are better policed and protected by other constitutional guarantees, such as due process and equal protection, that are designed to protect them.

Micro-Symposium on Competing Theories of Corporate Governance

On Friday, April 11, and Saturday, April 12, 2014, the UCLA School of Law Lowell Milken Institute for Business Law and Policy sponsored a conference on competing theories of corporate governance.

This conference provided a venue for distinguished legal scholars to define the competing models, critique them, and explore their implications for various important legal doctrines. In addition to an oral presentation, each conference participant was invited to contribute a very brief essay of up to 750 words (inclusive of footnotes) on their topic to this micro-symposium being published by the UCLA Law Review’s online journal, Discourse.

These essays provide a concise but powerful overview of the current state of corporate governance thinking. Our thanks to all the participants.

An Interrogation and Response to the Predominant Framing of Truancy

This Article explores the predominate framing of student truancy and uncovers the problems associated with the prevailing framework. California Attorney General Kamala Harris frames the issue as an economic crisis in which truant students and their parents are to blame. This framing of truancy has led to punishment-based solutions that not only exacerbate the school to prison pipeline, but also are ineffective in solving truancy. Punishment for truancy disproportionately affects poor students of color. Thus, the framing of truancy needs to shift towards one that acknowledges race and poverty in order to develop productive solutions.

Cracking the Cable Conundrum: Government Regulation of A La Carte Models in the Cable Industry

This Article examines the practice of cable bundling, a term describing how cable providers offer channels in “packages” of channels rather than allowing consumers to buy channels individually. These cable bundles have been criticized by politicians, academics, and the public alike, many of whom believe cable bundling simultaneously increases the price of cable and forces consumers to pay for programming they neither want nor use. Politicians have responded to these criticisms by advocating for legislation requiring cable companies to offer a la carte pricing options, in which customers can pick and choose individual channels. But evidence that an a la carte requirement would improve consumer satisfaction is scarce. Government intervention would introduce new inefficiencies to the market, thereby increasing consumer costs. Additionally, if the much maligned bundle is truly inefficient, any need for government regulation will likely be obsolete in the near future. The growing popularity of new media platforms such as Netflix, Hulu, and HBO Go will almost certainly necessitate more consumer-friendly offerings from cable companies sooner rather than later.

Probative or Prejudicial: Can Gang Evidence Trump Reasonable Doubt?

This study was designed to examine the potential biasing effect of gang evidence on jury verdicts. Two hundred four participants viewed one of two versions of a simulated trial that included opening statements and closing arguments by the prosecution and defense, and direct and cross-examination of the eyewitness and investigating officer. Half of the participants saw a version of the trial that included no mention of gang involvement, while the other half saw a version in which the prosecutor argued at opening and closing that the crime was committed for the benefit of a criminal street gang. In the gang version, participants also heard testimony from a gang expert who described the primary criminal activities of the gang. Jurors were read standard California jury instructions and deliberated in small groups. The prosecution’s case was very weak by design. Results revealed that when mock jurors were polled before deliberations, only 13 percent who saw the trial without gang evidence voted guilty compared to 36 percent in the gang condition. After deliberation, none of the jurors found the defendant guilty in the no-gang condition. However, when gang evidence was introduced, 10 percent of the jurors continued to vote guilty. When faced with potent gang testimony in the absence of persua-sive evidence, some jurors appeared to disregard reasonable doubt and vote to convict the defendant who was depicted as a dangerous gangster. This behav-ior appears to be driven by a form of jury nullification in the reverse direction, in which the defendant is judged to be deserving of punishment despite a lack of evidence related to the charge at hand. Implications of these data in the court-room are discussed.