VOLUME 62, ISSUE 2

  • Judging Opportunity Lost: Assessing the Viability of Race-Based Affirmative Action After Fisher v. University of Texas

    In this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent, affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to race-conscious affirmative action, courts should guide their consideration by the role that law must play in mitigating long-term, structural disadvantages maintained through race, which now functions as caste within the United States.

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  • Enforcing Rights

    Courts frequently confine constitutional litigation to a single remedial avenue. For example, courts typically allow enforcement of Fourth Amendment rights by providing either exclusion of evidence or a civil remedy under 42 U.S.C. § 1983, but not both. Yet this practice is at odds with judicial treatment of remedies in other arenas. Courts rarely limit common law litigants to a single remedy, for instance. Is there a reason that constitutional litigants should be treated differently from others?

    This Article answers that question in the negative. It begins by exposing the pervasive yet underexamined phenomenon of courts limiting constitutional litigants to a single remedial avenue. It then demonstrates that this judicial practice lacks justification. That is, the doctrinal and policy reasons that courts typically advance for foreclosing multiple remedial avenues in the constitutional context cannot withstand careful scrutiny, particularly given that multiple remedial avenues are entirely normal for common law claims. The Article subsequently builds on previous work by demonstrating that limiting plaintiffs to a single remedial avenue has negative consequences for the articulation of constitutional rights. After explaining why this is so, the Article proposes a number of doctrinal and practical innovations to better enforce constitutional rights via multiple remedial avenues.

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  • Milliken, Meredith, and Metropolitan Segregation

    Over the last sixty years, the courts, Congress, and the President—but mostly the courts—first increased integration in schools and neighborhoods, and then changed course, allowing schools to resegregate. The impact of these decisions is illustrated by the comparative legal histories of Detroit and Louisville, two cities which demonstrate the many benefits of metropolitan-level cooperation on issues of racial segregation, and the harms that arise in its absence. Detroit, Michigan, and Louisville, Kentucky, both emerged from the riots of the 1960s equally segregated in their schools and neighborhoods with proportionally sized racial ghettoes. In 1974-75, the Supreme Court overturned a proposed metropolitan school integration plan in Detroit, but allowed a metropolitan remedy for Louisville-Jefferson schools to stand. Since that time, Louisville-Jefferson schools and neighborhoods, like all the regions with metropolitan plans, have become among the most integrated in the nation, while Detroit’s schools have remained rigidly segregated and its racial ghetto has dramatically expanded. Detroit’s experience is very common in the highly fragmented metropolitan areas of the midwestern and northeastern United States. Black students in Louisville- Jefferson outperform black students in Detroit by substantial margins on standardized tests. Metropolitan Louisville has also grown healthier economically, while the City of Detroit went bankrupt and both the city and school district were taken over by state authorities. The Article concludes with a call to modernize American local government law by strengthening the legal concepts of metropolitan jurisdictional interdependence and metropolitan citizenship.

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  • David’s Sling: How to Give Copyright Owners a Practical Way to Pursue Small Claims

    It is notoriously difficult for copyright owners to bring small infringement claims. Just finding an attorney willing to take the case can be a challenge. Then there is the high cost of litigating in United States District Court—the only court with jurisdiction. For many, the obstacles are so daunting that they do not even try. The U.S. Congress has recognized the problem and asked the Copyright Office to study it. Finding a solution is far more complex than one might first assume. There are constitutional issues, such as the right to a jury trial and the separation of powers. Questions of law and procedure also arise. Competing interests must be balanced; any change in the system will help some and hurt others. And the discussion is taking place in an ever-evolving media environment in which it is easier than ever to make and publish copies. This Comment examines some of the options that have been suggested, including the Copyright Office’s proposal for a voluntary alternative system for the adjudication of small copyright claims. This Comment proposes that Congress instead establish a mandatory alternative system by creating an administrative agency to regulate such claims.

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  • Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences

    Marijuana is being decriminalized in many states and localities throughout the United States. While recreational use of marijuana is legal in only a handful of states, in many other areas it has become a type of pseudo-violation with such low criminal penalties that defendants may be issued just a citation or ticket and are often not entitled to the assistance of a public defender. While low-level marijuana offenses have fewer meaningful consequences within the criminal justice system in these jurisdictions, these offenses continue to create serious immigration consequences for noncitizen offenders. The Immigration and Nationality Act defines “conviction” in such a way that even civil infractions with very low penalties count as drug convictions that make lawful permanent residents deportable.

    The combination of lowered criminal penalties for marijuana offenses and severe resulting immigration consequences causes significant problems for noncitizens. First, as the penalties for marijuana offenses are lowered at the state and local levels, a defendant is less likely to have a right to appointment of a public defender when charged with possession of a small amount of marijuana. This situation implicates potential violations of the Sixth Amendment right to effective assistance of counsel in criminal proceedings, which has been held to cover affirmative advice on the immigration consequences of a criminal charge. Additionally, even with the assistance of a public defender, individuals may still be unable to avoid the harsh immigration consequences that often result from marijuana offenses. These harsh consequences violate our society’s understanding of proportionality of punishment in criminal law. Even though immigration law is traditionally insulated from proportionality considerations because of the plenary power doctrine, deportation for low-level marijuana offenses provides one example of why this doctrine should be reconsidered.

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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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