UCLA Law Review Volume 53, Issue 2


Transgender Immigration: Legal Same-Sex Marriages and Their Implications for the Defense of Marriage Act

The continued possibility of federally sanctioned same-sex marriages might surprise those who believe that the Defense of Marriage Act (DOMA) recognizes only those marriages between men and women. In the case of transgender individuals, however, this debate is far from over. While some state courts recognize sex-reassignment surgeries as controlling in deciding whether to authorize a marriage, other state courts have held that an individual’s sex, for marriage purposes, is immutably fixed at birth. Unfortunately, DOMA fails to reconcile these differing views by merely restricting marriage to one “man” and one “woman.” This failure to define man and woman is a fundamental flaw in DOMA’s drafting, which results in unpredictable treatment for transgender individuals in the federal context-for example, in the case of immigration. This Comment therefore argues that the federal government should resolve DOMA’s ambiguity by clarifying the Act’s definition of man and woman. An appropriate definition must take into account current medical evidence suggesting that an individual’s sex designation at birth is useful, but not dispositive, and that at least eight distinct factors contribute to notions of sexual identity. Lastly, this Comment asserts that immigration is an ideal forum to test the practicability of these factors, both because of the recent frequency of marriages involving transgender individuals in immigration cases, and because the United States Citizenship and Immigration Services (USCIS) is historically familiar with the use of balancing tests in its decisions.

Calibrating the Balance of Free Exercise, Religious Establishment, and Land Use Regulation: Is RLUIPA an Unconstitutional Response to an Overstated Problem?

The Religious Land Use and Institutionalized Persons Act (RLUIPA) reflects a continuing struggle between Congress and the Supreme Court to define the scope of religious liberties guaranteed by the Free Exercise Clause of the First Amendment. RLUIPA is Congress’s second attempt to countermand the Supreme Court’s decision in Employment Division, Department of Human Resources v. Smith, which held that the Free Exercise Clause does not require religious exemptions from neutral laws of general applicability that impose a substantial burden on religious exercise. In promulgating RLUIPA, Congress sought to vitiate governmental discrimination against religious individuals and groups in the land use context by mandating strict scrutiny review of land use regulations that impose a substantial burden on religious exercise. In this Comment, the author argues that RLUIPA cannot be supported as a valid exercise of Congress’s enforcement power under Section 5 of the Fourteenth Amendment. RLUIPA cannot be characterized as remedial legislation pursuant to the enforcement provisions of the Fourteenth Amendment because Congress has failed to adduce meaningful evidence of pervasive, unconstitutional religious discrimination in the implementation of local land use regulations. Moreover, rather than codifying or enforcing existing jurisprudence, RLUIPA substantively alters legal doctrine in at least two ways. First, the Act includes an overbroad definition of what constitutes a substantial burden on religious exercise, and thereby modifies the scope of judicially recognized religious liberties. Second, by requiring strict scrutiny review in all cases where a local government is empowered to make an individualized assessment of a religious land use, RLUIPA expands the limited category of cases that trigger strict scrutiny review in the aftermath of Smith. Although federal appellate court decisions generally have upheld the constitutionality of RLUIPA by harmonizing its provisions with existing free exercise jurisprudence, the author maintains that such narrow constructions have not lessened RLUIPA’s generally broad and unconstitutional reach. Finally, the author suggests that RLUIPA is a poorly calibrated and potentially counterproductive approach to furthering religious liberty protections in the land use context.

Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage

This Article narrates a sorely neglected legal history, that of the intersection between race, gender, and American citizenship through the first third of the twentieth century. It is a little known fact that marriage once functioned to exile U.S. citizen women from their country; moreover, how racial barriers to citizenship shaped expatriation and dependent citizenship presents an even more complex history. Using an intersectional analysis to consider the impact of gender on racial bars to citizenship, as well as the impact of race on gendered bars to citizenship, the Article thus begins with a clarification of the historical record. But beyond narrating and clarifying history, exploring the contours of gender- and race-based exclusion offers a potent lesson about citizenship more generally. In particular, the history of dependent citizenship and marital expatriation shows how notions of incapacity were foundational to racial and gendered disenfranchisement from formal citizenship. Such notions of incapacity, reflected in laws of coverture and race-based exclusion, were deeply connected to moral and republican ideals-which were assumed unattainable by Asian women and men. Therefore, our understanding of citizenship broadens if we focus not only on the status-race and gender-used to deny citizenship, but also on the rationales about appropriate conduct that precluded certain individuals from access to the American polity. In addition to literal access and exclusion, the Article examines how identity shapes citizenship more broadly. Whether one discusses citizenship in the form of rights, as political activity, or symbolically, it is apparent that continued ambivalence about admission to citizenship remains. Although race-based and gender-based bars to formal citizenship no longer exist, prosecution of the “War on Terror” suggests that identity still shapes notions of who is capable and incapable of fulfilling our moral and political ideals.

Patterns in a Complex System: An Empirical Study of Valuation in Business Bankruptcy Cases

This Article applies complex systems research methods to explore the characteristics of the bankruptcy legal system. It presents the results of an empirical study of twenty years of bankruptcy court valuation doctrine in business cramdown cases. The data provide solid descriptions of how courts exercise their discretion in valuing firms and assets. This Article has two objectives: First, using scientific methodology, it explains the content of bankruptcy valuation doctrine. Second, the Article uses doctrine as a variable to explore the system dynamics that govern the processes of change over time. Significant findings include: (1) Courts tend to split the difference in valuations much less frequently than expected; (2) while early data show debtors’ and creditors’ valuation positions were close together, later data show the parties’ valuations moved further apart; (3) bankruptcy courts’ valuation approach is substantially influenced by whether the valuation includes a calculation for the time value of money; (4) there seems to be some geographic distribution of courts’ acceptance of valuation models, with courts in southern circuits more likely to accept soft valuation models, and nonsouthern circuit courts more likely to accept hard valuation models; and (5) the evidence offers preliminary support for the hypothesis that bankruptcy system content may self-organize according to some complex deterministic dynamics.

The Exit Structure of Venture Capital

Venture capital contracts contain extensive provisions regulating exit by the venture capitalists. In this Article, Professor Smith employs financial contracting theory in conjunction with original data collected from 367 venture-backed companies to analyze these exit provisions. He concludes that the combination of exit provisions in a typical venture capital relationship serves to lock venture capitalists into the investment during the initial stage. In later stages of the relationship, the venture capitalists acquire increasing control over exit by securing additional seats on the board of directors and by obtaining contractual exit rights. The result is a sophisticated transfer of control from the entrepreneur to the venture capitalists as financial investments increase.