VOLUME 62, ISSUE 3

  • Fixing Public Sector Finances: The Accounting and Reporting Lever

    The finances of many states, cities, and other localities are in dire straits. In this Article, we argue that partial responsibility for this situation lies with the outdated and ineffective financial reporting regime for public entities. Ineffective reporting has obscured and continues to obscure the extent of municipal financial problems, thus delaying or even preventing corrective actions. Worse, ineffective reporting has created incentives for accounting gimmicks that have directly contributed to the dramatic decline of public sector finances. Fixing the reporting regime is thus a necessary first step toward fiscal recovery. We provide concrete examples of advisable changes in accounting rules and advocate for institutional changes, particularly Securities and Exchange Commission involvement, that we hope will lead to better public accounting rules generally.

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  • Less Enforcement, More Compliance: Rethinking Unauthorized Migration

    A common assumption underlying the current public discourse and legal treatment of unauthorized immigrants is that unauthorized immigrants are lawless individuals who will break the law—any law—in search of economic gain. This notion persists despite substantial empirical evidence to the contrary. Drawing on original empirical data, this Article examines unauthorized immigrants and their relationship to the law from a novel perspective to make two major contributions. First, I demonstrate that unauthorized immigrants view themselves and their noncompliance with U.S. immigration law in a manner that is strikingly different from the prevalent view of criminality and lawlessness found in popular and legal accounts. Unauthorized immigrants’ decisions to cross the border—and to remain in the United States despite their lack of legal status—are likely shaped in large measure by their distinct normative views of themselves and their economic situations, as well as their perceptions about the lack of legitimacy of U.S. immigration law. Second, I show why understanding these views and values of unauthorized immigrants may have significant implications for promoting voluntary compliance with U.S. immigration law.

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  • Decriminalization, Police Authority, and Routine Traffic Stops

    Although there is no universal definition of “decriminalization,” approaches to decriminalization largely focus on modifying how conduct is sanctioned or punished. This Article argues that there is a need to broaden approaches to decriminalization beyond sanctions and give more consideration to the other ways in which criminalization fosters state control over civilians—including police authority and discretion. Decriminalization should restrict opportunities and methods for the state to control civilians in ways that (1) facilitate their entry into, or continued contact with, the criminal justice system, and (2) leave them vulnerable to state-imposed privacy, liberty, dignitary, and physical harms that arise from contact with the criminal justice system and actors. These goals are undermined when decriminalization does not capture police authority and discretion.

    To illustrate these points, this Article focuses on the most common form of civilian interaction with the police—the routine traffic stop. Through original research, this Article shows that since 1970 twenty-two states have decriminalized minor traffic violations by removing criminal sanctions, reclassifying the violations as noncriminal offenses, and streamlining their adjudication to the administrative realm. These decriminalization reforms have centered on modifying sanctions and have rarely restricted police authority and discretion in routine traffic stop settings.

    This Article then exposes and examines an asymmetry in the criminal justice process that emerges from sanction-focused approaches to decriminalization, and appears in traffic decriminalization trends. Specifically, the focus on sanctions in traffic decriminalization reforms has enabled states to retain access to an expanding set of crime-fighting tools via the policing of decriminalized traffic violations to further their crime-control policies (such as drug law enforcement). This access, however, comes at the expense of funneling drivers and passengers into the criminal justice system, and making all drivers—whether innocent or guilty of nontraffic crime—more vulnerable to privacy, liberty, dignitary, and physical harms that stem from policing in traffic settings. These results, which advocates of decriminalization should seek to avoid, especially affect people of color and other minority communities that are more vulnerable to concentrated police surveillance and pretextual traffic stops.

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  • Not Whether Machines Think, But Whether Men Do

    Drones “allow for the most discriminating uses of force in the history of military technology,” and can thus be a profound humanitarian advancement in warfare. State actors alone, however, can actualize this potential. Although the United States complies with international humanitarian law from strike authorization through strike execution within the Afghanistan theatre of war, its methods for evaluating and reporting collateral damage caused by drone strikes—including presuming every deceased “military-aged male[] in a strike zone” to have been a “combatant[]”—do not comply with international law. The United States must amend its policies to uphold its obligations of forming customary international law that mandates a humane use of drones in theatres of war, and protecting its ground troops from distrust and violence predicated on inaccurate reporting of collateral damage.

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  • Fighting for a Place Called Home: Litigation Strategies for Challenging Gentrification

    Since the passage of the 1968 Fair Housing Act (FHA), there have been clear legal tools and strategies for combating segregation and promoting diverse cities and towns. While the FHA and zoning laws have been used successfully to ensure that formerly all-white city neighborhoods and towns are accessible to diverse residents, a new problem is emerging for those who value integrated neighborhoods: the reversal of white flight. The 2010 Census showed a strong demographic shift of white residents moving back to the core of cities while black and Hispanic residents are pushed to the cities’ perimeters. This racialized displacement is called gentrification, and there has been little analysis of how legal strategies could be used to challenge it in order to ensure that minority communities receive the benefits of revitalizing city neighborhoods and remain in their homes.

    This Comment will explain the role gentrification plays in many cities and the legal strategies available for ensuring that cities remain diverse and affordable. It explores how attorneys can use zoning laws to preserve or create more affordable housing in cities even before the gentrification of a neighborhood is underway, environmental impact statements to fight proposed luxury developments that often are built near the beginning or middle of the gentrification process, and the FHA to preserve affordable housing and to challenge the building of luxury developments in neighborhoods that have undergone significant gentrification.

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DISCOURSE

  • 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.

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  • 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.

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  • 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.

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  • 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.

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  • 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.

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  • 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.

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