UCLA Law Review Volume 52, Issue 2


An Unexpected Application of 42 U.S.C. § 14141: Using Investigative Findings for § 1983 Litigation

Police misconduct is a sadly recurring phenomenon in the United States, frequently commented upon by mass media, legislators, the courts, and legal scholars. Incremental steps have been taken to remedy persistent police misconduct, most notably and recently by Congress’ passage of 42 U.S.C. § 14141. Section 14141 grants the Department of Justice (DOJ) the authority to pursue relief against law enforcement officials engaged in a pattern or practice of conduct that deprives persons of their constitutional rights. The DOJ has utilized its § 14141 power to enter into private settlements with police departments and increasingly provides for the confidentiality of all documents discovered during its preceding investigations of those police departments. While § 14141 has made important strides in reforming law enforcement agencies and deterring pervasive police misconduct, it has been administered without regard to the underlying victims of police abuse. In this Comment, the author suggests that victims of police abuse attempt to harness the fact-finding unearthed during § 14141 investigations to pursue § 1983 actions seeking 3 compensatory damages from their abusers. This strategy of follow-on litigation, using government fact-finding to aid private claims, would adopt techniques already utilized in such diverse areas as antitrust, corporate malfeasance, and products liability. By learning from these other notable areas of follow-on litigation, victims of police abuse could potentially increase the likelihood of damage recovery, and help to effectuate the dual remedial goals of compensation and deterrence. This Comment proposes that the DOJ alter its administration of § 14141 to increase transparency and allow broader access to the documents and findings stemming from its § 14141 investigations.

After Grutter: Ensuring Diversity in K-12 Schools

The Supreme Court held in Grutter v. Bollinger that the attainment of a diverse student body could justify the use of race in admissions decisions in higher education. This decision did not, however, address whether student body diversity could justify race-conscious student assignment policies at the public primary and secondary school level. Several circuit courts dodged this issue prior to Grutter, assuming that diversity was a compelling interest but invalidating the race-conscious student assignment plans as not narrowly tailored. Since Grutter, the Ninth Circuit, in Parents Involved in Community Schools v. Seattle School District, No. 1, held that student body diversity is a compelling interest in the secondary school context yet struck down the policy as not satisfying Grutter’s narrow tailoring framework. The reluctance on the part of federal courts to uphold voluntary race-conscious student assignment policies, coupled with an increase in the termination of prior desegregation orders, has contributed to the rapid resegregation of public primary and secondary schools. This Comment provides a framework for upholding voluntary race-conscious student assignment policies at the K-12 level to potentially assist in reversing this trend. The author argues that an extension of Grutter’s diversity rationale is warranted based on the demonstrated academic and societal benefits of diversity in primary and secondary schools, distinctions between the K-12 and higher education contexts, and Supreme Court precedent. The author also describes how school districts seeking to promote diversity through voluntary race-conscious student assignment policies can reasonably comply with Grutter’s narrow tailoring requirements. Furthermore, the author argues that school districts with non-merit-based race-conscious student assignment policies need not comply with Grutter’s requirement of individualized consideration, as student assignment in such schools is not predicated on students’ distinguishing themselves as individuals.

Courts as Forums for Protest

For almost half a century, scholars, judges and politicians have debated two competing models of the judiciary’s role in a democratic society. The mainstream model views courts as arbiters of disputes between private individuals asserting particular rights. The reform upsurge of the 1960s and 1970s led many to argue that courts are not merely forums to settle private disputes, but can also be used as instruments of societal change. Academics termed the emerging model the “public law” or “institutional reform” model. The ongoing debate between these two views of the judicial role has obscured a third model of the role of courts in a democratic society. This model has been largely ignored by legal scholars and viewed as illegitimate by some courts. The third, alternative perspective views courts as forums for protest. Under this model, courts not only function as adjudicators of private disputes, or institutions that implement social reforms, but as arenas where political and social movements agitate for, and communicate, their legal and political agenda. The courts as forums for protest model differs from the traditional, private dispute model and the institutional law reform model, the two models traditionally described by legal scholars. The reduced emphasis on winning or losing and the lesser role of the judge are two features that distinguish this model from the others. Our nation has seen a long tradition of litigators and movements using the courts as platforms for arguing controversial positions and garnering public support for them. From the Revolutionary period, through this country’s struggle with the issues of slavery and women’s suffrage, up until modern instances where private citizens and public officials have attempted to challenge governmental actions, our system’s courts have been used as forums to stir debate by the citizenry. Because of the importance of encouraging people to engage in discussion about current social issues, and because of the implications for freedom of speech, courts should not allow sanctions under Federal Rule of Civil Procedure 11 or other similar rules to stifle popular debate stirred by lawsuits that may be considered “frivolous” because they argue against precedent or are viewed as losing cases. Bringing a lawsuit to generate publicity for one’s cause should not be viewed as an improper or frivolous purpose under Rule 11. Under the courts as forums for protest model, judges will often find themselves in a difficult position: They will be faced with a situation where legal precedent and social and political reality collide. Though articulating a legal principle while deciding a case without enforcing that principle may seem problematic, judges should feel comfortable doing so when it is necessary in order to encourage society and governmental actors to remedy an injustice that will otherwise continue unchecked. Finally, progressive attorneys should adapt to this model as well. Realizing that litigation is part of an overall strategy that should include publicity and other forms of political action, they should become involved with the groups and movements they represent, and shape their litigation strategies so that they will dovetail with the overall goals of those movements.

Choosing Gatekeepers: The Financial Statement Insurance Alternative to Auditor Liability

Contributing to a lively debate concerning how to design auditor incentives to optimize financial statement auditing, this Article presents the more ambitious financial statement insurance alternative. This approach breaks from the existing securities regulation framework to draw directly on insurance markets and insurance law. The author prescribes a framework to permit companies, on an experimental basis and with investor approval, to use financial statement insurance as an alternative to financial statement auditing backed by auditor liability. A chief challenge for the efficacy of such an alternative is the relation of state insurance law to federal securities regulation. One solution is to develop for financial statement insurance the functional equivalent of the U.S. Trust Indenture Act of 1939, which is applicable to contracts governing public debt securities. This would allow substantial freedom of contract in policy terms, governed by state law, while mandating certain specific terms and establishing minimum federal parameters for others. Most other hurdles arising from the interplay between state insurance law and federal securities regulation can be overcome using disclosure. A broader challenge is preserving insurer solvency if financial statement insurance is placed at the center of the public-company financial reporting system.

A New Test for Predation: Targeting

The prevailing test for predation under section 2 of the Sherman Act is the Areeda-Turner rule, which condemns pricing below a dominant firm’s own average variable cost. This rule is both underinclusive and overinclusive, and is not generalizable to cases of nonprice predation. Alternative rules are also flawed. Those based on behavior do not address predation before the victim has been destroyed. Other recently proposed rules are simply legislative suggestions that, if predation is allowed, the lower price should be continued for an arbitrary period to benefit consumers. Other rules condemn the use of asymmetric information, which should, instead, be viewed as a firm’s inherent advantage. In place of these rules, the authors propose that action by a firm with market power be deemed predatory if-and only if-it targets some but not all competitors. Both price and nonprice predation can be challenged under this targeting rubric. Condemning targeting does not run the risk of chilling pro-competitive behavior, nor of punishing a firm for being more efficient than a rival. The authors test recent case law against this new model, and find that it would have accurately predicted all major recent antitrust decisions. They also show that it is allocatively and productively efficient. The method of proof for the authors’ propositions includes the use of Voronoi diagrams, illustrating competition between firms in up to three dimensions.