VOLUME 61, ISSUE 5

  • Opinions First—Argument Afterwards

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  • How the California Supreme Court Actually Works: A Reply to Professor Bussel

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  • The Best of All Possible Worlds? A Rejoinder to Justice Liu

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  • Deprivative Recognition

    Family law is now replete with proposals advocating for the legal recognition of nonmarital relationships: those between friends, relatives, unmarried intimate partners, and the like. The presumption underlying these proposals is that legal recognition is financially beneficial to partners. This assumption is sometimes wrong: Legal recognition of relationships can be harmful to unmarried partners—a reality whose impact on policy concerning regulation of nonmarital unions has not been explored. As this Article shows, a significant number of people benefit financially from nonrecognition of their relationships. While in most cases the state turns a blind eye to this financial gain, when it comes to a particular set of benefits, the state routinely recognizes partners against their will in order to withhold or terminate benefits, a subset of ascriptive recognition that I call “deprivative recognition.”

    Deprivative recognition is unjust because it is asymmetrical: It deprives couples of benefits they would receive if they were unpartnered while they nevertheless remain ineligible to receive benefits granted to married couples in similar arenas. This asymmetry is particularly troublesome because those who enjoy the benefits of nonrecognition often belong to particularly vulnerable populations, such as those who qualify for means-tested programs. This Article recognizes and provides a normative assessment of deprivative recognition and the distributive injustices it creates.

    Identifying deprivative recognition, in turn, unearths a larger set of theoretical questions about the interplay between cultural recognition and distributive justice in the law of unmarried partners, including a question about what kind of law promotes both cultural recognition and distributive justice for unmarried partners. The Article builds on Nancy Fraser’s theory of recognition and redistribution as a “folk paradigm of justice,” explaining why it is essential for the law of unmarried partners to adopt both of these aspects of justice and how this can be done.

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  • Immigration Detention as Punishment

    Courts and commentators have long assumed, without significant analysis, that immigration detention is a form of civil confinement merely because the immigration proceedings of which it is part are deemed civil. This Article challenges that deeply held assumption. It harnesses the U.S. Supreme Court’s instruction that detention’s civil or penal character turns on legislative intent and, buttressed by theoretical understandings of punishment, contends that immigration detention—apart from the deportation that often results—itself constitutes penal incarceration. In particular, legislation enacted over roughly fifteen years in the 1980s and 1990s indicates a palpable desire to wield immigration detention as a tool in fighting the nation’s burgeoning war on drugs by penalizing and stigmatizing criminal behavior. Indeed, the modern immigration detention system has accomplished the U.S. Congress’s punitive goal: Immigration detention is a severely unpleasant experience and immigration detainees are viewed as dangerous. In order to remain true to the Court’s guidance to draw formal boundaries between civil and penal confinement, the current immigration detention regime should be conceptualized as punishment. This Article contends that the constitutional limitations imposed by criminal procedure are ill-equipped to address immigration detention. Instead, policymakers should learn from the nation’s failed experience with mass penal incarceration—and step back from immigration detention’s punitive origins to create a truly civil immigration detention system.

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  • Toward a Theory of Equitable Federated Regionalism in Public Education

    School quality and resources vary dramatically across school district boundary lines. Students who live mere miles apart have access to disparate educational opportunities based on which side of a school district boundary line their home is located. Owing in large part to metropolitan fragmentation, most school districts and the larger localities in which they are situated are segregated by race and class. Further, because of a strong ideological preference for localism in public education, local government law structures in most states do not require or even encourage collaboration between school districts in order to address disparities between them. As a result, the combination of metropolitan fragmentation and localism in public education leads to the exclusion of poor and minority students from access to high-quality school districts, which are largely clustered in more affluent and predominately white localities.

    This Article contends that, given the race- and class-based exclusionary effects that metropolitan fragmentation and localism have on public education, the time has come to reconsider the wholesale commitment to localism in public education. It suggests that in some instances, the dissemination of public education should be made on a regional basis rather than a local basis. It examines how enacting regionalism—a theoretical framework, which advocates for the installment of regional governance structures—might occur in public education. Borrowing from two specific theories of regionalism, equitable regionalism and federated regionalism, it proposes a framework entitled “Equitable Federated Regionalism” for disseminating public education on a regional basis. It suggests that enacting Equitable Federated Regionalism as a form of state law reform would help to ameliorate current disparities in public education that occur along the basis of race and class.

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  • The Dark Side of the First Amendment

    Each year, the UCLA School of Law hosts the Melville B. Nimmer Memorial Lecture. Since 1986, the lecture series has served as a forum for leading scholars in the fields of copyright and First Amendment law. In recent years, the lecture has been presented by many distinguished scholars. The UCLA Law Review has published these lectures and proudly continues that tradition by publishing an Article by this year’s presenter, Professor Steven Shiffrin.

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  • Misdiagnosing the Impact of Neuroimages in the Courtroom

    Neuroimages and, more generally, neuroscience evidence are increasingly used in the courtroom in hope of mitigating punishment in criminal cases. Many legal commentators express concern because they fear that the prejudicial effect of such evidence significantly outweighs its probative value. In light of earlier empirical studies, this concern is predominantly directed toward the visual impact of neuroimages. Thus, the conventional wisdom in the legal literature is that the visual impact of neuroimages drives the overpersuasiveness of neuroscience evidence.

    However, recent empirical studies draw into question the conventional wisdom because they show that neuroimages themselves are not overly persuasive. Thus, this Comment proposes a new theory—the structure/function paradigm—as a competing theory to the conventional wisdom. This paradigm posits that the type of brain abnormality drives the prejudicial nature of neuroscience evidence, not the visual impact of neuroimages. That is, laypeople perceive structural and functional brain abnormalities differently and view structural abnormalities as more causally potent than functional abnormalities. This Comment seeks to show that the structure/function paradigm provides a more consistent and compelling story than the conventional wisdom by resolving contradictions in the empirical studies and applying the paradigm to actual cases.

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  • Under the (Territorial) Sea: Reforming U.S. Mining Law for Earth’s Final Frontier

    As mineral prices continue to rise and high-quality terrestrial supplies dwindle, hardrock mining will soon spread to the one place on this planet it currently does not occur: underwater. The United States has regulations permitting the issuance of offshore mineral leases, but these regulations rest on questionable authority from 1953 and are already obsolete even though they have never been used. The United States will need to adopt new legislation before it can effectively access and develop this final mining frontier. The history of American mineral law is littered with mistakes and scandals. But in this particular context, that tortuous past can have a silver lining if used as a precautionary tale: Learning from the mistakes of onshore mining law, onshore oil law, and offshore oil law, the United States has an opportunity to proactively reform underwater mineral law to responsibly usher in the future of hardrock mining. In light of this opportunity, this Comment examines three case studies from U.S. mineral law to extract lessons and suggests how such lessons could inform lawmakers in drafting a sensible offshore mining law.

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DISCOURSE

  • 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.

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  • 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.

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  • 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.

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  • The Fifth Amendment, Encryption, and the Forgotten State Interest

    This Essay considers how the Fifth Amendment’s Self-Incrimination Clause applies to encrypted data and computer passwords. In particular, it focus-es on one aspect of the Fifth Amendment that has been largely ignored: its aim to achieve a fair balance between the state’s interest and the individual’s. This aim has often guided courts in defining the Self-Incrimination Clause’s scope, and it should continue to do so here. With encryption, a fair balance requires permitting the compelled production of passwords or decrypted data in order to give state in-terests, like prosecution, an even chance. Courts should therefore interpret Fifth Amendment doctrine in a manner permitting this compulsion.

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  • Football and the Infield Fly Rule
    In a previous article, I defended baseball’s infield fly rule, the special rule long beloved by legal scholars, in terms of equitable balance in distribution of costs and benefits between competing teams. This essay applies those cost-benefit and equity insights to football. It explores several plays from recent Super Bowls, the cost-benefit balance on those plays, and the appropriate role in foot-ball for limiting rules similar to the infield fly rule.
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  • Alleyne v. United States, Age as an Element, and the Retroactivity of Miller v. Alabama

    The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles was cruel and unusual punishment in violation of the Eighth Amendment.  The million-dollar question was whether it would do any good for the over 2000 juveniles who had previously been so sentenced.  The touchstone of Miller’s retroactivity hinges on the question of whether the rule it announced is substantive—and therefore retroactive—or procedural. 

    The quasi-substantive/quasi-procedural nature of the Miller opinion created a conundrum for lower courts, which have split on the retroactivity question, with several additional jurisdictions yet to decide.  As detailed in this Essay, the answer to this puzzle comes from an unlikely source: the Court’s Sixth Amendment jury-trial jurisprudence, and particularly its June 2013 interpretation of that right in Alleyne v. United States.  Though unrelated to both juvenile sentencing and retroactivity, the Alleyne Court determined that where the existence of a fact dictates whether a mandatory minimum applies, the fact acts as an element of the underlying offense.  This Essay extrapolates from the Alleyne holding and argues that Miller’s requirement that sentencers consider age and its attendant consequences in cases involving juveniles—making age at the time of the offense a fact that triggers whether the mandatory minimum sentence of life without parole applies—converts age to an element of the underlying offense, rendering Miller a substantive rule that must be applied retroactively.

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