VOLUME 62, ISSUE 1

  • Intellectual Property Law Solutions to Tax Avoidance

    Multinational corporations use intellectual property (IP) to avoid taxes on a massive scale, by transferring their IP to tax havens for artificially low prices. Economists estimate that this abuse costs the U.S. Treasury as much as $90 billion each year. Yet tax policymakers and scholars have been unable to devise feasible tax-law solutions to this problem.

    This Article introduces an entirely new solution: change IP law rather than tax law. Multinationals’ tax-avoidance strategies rely on undervaluing their IP. This Article proposes extending existing IP law so that these low valuations make it harder for multinationals to subsequently litigate or to license their IP. For example, transferring a patent for a low price to a tax-haven subsidiary should make it harder for the multinational to demonstrate the patent’s validity, a competitor’s infringement, or entitlement to any injunctions. The low transfer price should also weigh toward lower patent damages and potentially even a finding of patent misuse. Extending IP law in such ways would thus deter multinationals from using IP to avoid taxes. Both case law and IP’s policy justifications support this approach.

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  • Cooperative Federalism and Marijuana Regulation

    The struggle over marijuana regulation is one of the most important federalism conflicts in a generation. The ongoing clash of federal and state marijuana laws forces us to consider the preemptive power of federal drug laws and the appropriate roles for state and federal governments in setting drug policy. This conflict also creates debilitating instability and uncertainty on the ground in those states moving from prohibition to regulation of marijuana.

    While the courts have yet to establish the precise contours of federal preemption doctrine in this context, we argue that the preemptive reach of the federal Controlled Substances Act (CSA) is relatively modest. Recognition of this legal reality likely played a significant role in the recent Department of Justice (DOJ) decision not to challenge the Colorado and Washington State ballot initiatives legalizing and regulating marijuana for adult use. Yet even if the federal government honors its commitment to not enforce federal drug laws against those complying with robust state regulatory regimes, the ancillary consequences flowing from the continuing federal prohibition remain profound. Banks, attorneys, insurance companies, potential investors, and others—justifiably concerned about violating federal law—are reluctant to provide investment capital, legal advice, or other basic professional services necessary for marijuana businesses to function. Those using marijuana in compliance with state law still risk losing their jobs, parental rights, and many government benefits if their marijuana use is discovered.

    We suggest an incremental and effective solution that would allow willing states to experiment with novel regulatory approaches while leaving the federal prohibition intact for the remaining states: The federal government should adopt a cooperative federalism approach that allows states meeting specified federal criteria—criteria along lines that the DOJ has already set forth—to opt out of the CSA provisions relating to marijuana. State law satisfying these federal guidelines would exclusively govern marijuana activities within those states opting out of the CSA but nothing would change in those states content with the CSA’s terms. This proposed solution embodies the best of federalism by empowering state experimentation with marijuana regulation while maintaining a significant federal role in minimizing the impact of those experiments on states wishing to proceed under the federal marijuana prohibition.

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  • Offshoring the Army: Migrant Workers and the U.S. Military

    Long-running debates over military privatization overlook one important fact: The U.S. military’s post-2001 contractor workforce is composed largely of migrants imported from impoverished countries. This Article argues that these Third Country National (TCN) workers—so called because they are neither American nor local—are bereft of the effective protections of American law, local regimes, or their home governments; moreover, their vulnerability is a feature, not a flaw, in how the U.S. projects global power today. TCN workers are an offshore captive labor force whose use allows the government to keep politically sensitive troop numbers and casualty figures artificially low while reducing dependence on local populations with suspect loyalties. Legislation to combat human trafficking has done little to remedy exploitation and abuse of TCN workers because of jurisdictional hurdles and the lack of robust labor rights protections. Substantive reform efforts should address the deeper issue at stake, namely that the government uses TCN workers to carry out a core state function—namely, the use of force—without a clear relationship of responsibility to them. Unlike with soldiers, the labor of TCN workers is not valorized as sacrifice and unlike mercenaries selling their services to the highest bidder, they are frequently indebted to the point of indenture.

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  • Inmates’ Need for Federally Funded Lawyers: How the Prison Litigation Reform Act, Casey, and Iqbal Combine With Implicit Bias to Eviscerate Inmate Civil Rights

    The United States incarcerates a larger percentage of our population than any other country. Minority populations make up a substantially disproportionate percentage of those incarcerated. For a variety of reasons, violence perpetrated against incarcerated persons, including sexual assault, is endemic and inmates have very limited opportunities to protect themselves. The state has an obligation to protect these people whom it has chosen to strip of the ability to protect themselves and to provide for inmates’ other "basic human needs" such as adequate nutrition and housing.

    The only legal avenue of redress available for inmates to enforce their constitutional rights lies with the courts. But in recent decades, inmates’ access to the courts has been undermined by Congressional acts (principally the Prison Litigation Reform Act) and Supreme Court decisions (such as Casey and Iqbal), leading to a sharp reduction in the success rate of meritorious inmate Constitutional claims. Additionally, pro se inmates, who file the vast majority of claims, have substantially lower success rates in civil rights cases than do represented inmates.

    I therefore propose that a new program called Prison Lawyers be designed and implemented. Prison Lawyers would work for the state, much like public defenders do, and would guide inmates through increasingly complicated administrative grievance processes to achieve exhaustion. Should grievances not be successfully settled, Prison Lawyers would then help inmates file civil rights claims in federal courts. This system would potentially save the state money by reducing the courts’ burden in processing pro se inmate civil rights claims, and would ensure the enforcement of constitutional carceral conditions.

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  • Proportional Voting Through the Elections Clause: Protecting Voting Rights Post-Shelby County

    The Voting Rights Act passed fifty years ago and its success at curbing electoral discrimination is unquestioned. Section 5’s preclearance, which requires specific jurisdictions to seek federal preapproval of election laws, was central to this success. Yet the Supreme Court, in Shelby County v. Holder, invalidated the formula that selected preclearance jurisdictions. Without the formula, preclearance can no longer protect against voting discrmination. Shelby County v. Holder compels rethinking voting rights legislation.

    This Comment advocates for the Elections Clause as the new foundation for voting rights legislation. The Clause grants Congress authority to regulate the "Times, Places and Manner of holding Elections for Senators and Representatives." The Supreme Court has interpreted the Clause to give Congress broad authority in dictating all manner and mode of federal elections. Legislation that is permissible under the Clause likely includes regulations mirroring preclearance. This Comment argues that one promising variety of such regulation is a national proportional voting system able to combat gerrymandering. This proposal highlights that through the Elections Clause, Congress can guarantee continued voting rights protections.

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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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