UCLA Law Review Volume 54, Issue 5


Foreign Law and the U.S. Constitution: Delimiting the Range of Persuasive Authority

In recent years, hostility against judges who invoke foreign law in constitutional cases has escalated dramatically. Comparative approaches are presumed to present a significant threat to democratic accountability. In addition, judges have been faulted for failing to articulate objective criteria for selecting foreign authorities. The issue, however, is more nuanced than critics tend to acknowledge, and many systemic errors can be corrected without devising a novel theory of constitutional interpretation. In this Comment, I identify three comparative approaches that are capable, in theory, of eluding criticism on democratic-accountability grounds. I then compare the methods for selecting authorities under each of the three approaches to demonstrate that, in practice, comparative law conventions are no more inherently dubious than those employed under traditional, even wholly domestic, interpretive methods. Implementing the neutral criteria suggested herein will operate to curb judicial discretion and impose limits on the permissible range of persuasive authority. Though I ultimately advance constraints on the application of foreign sources, my intention is not to deter examination of such material, but rather, to illustrate how foreign authorities can be selected impartially so as to engender less criticism.

Enforcing International Commercial Mediation Agreements as Arbital Awards Under the New York Convention

Mediation offers enticing advantages over adversarial systems for the resolution of commercial disputes. Mediation preserves party autonomy by vesting process development and final-decision authority in the hands of the disputing parties. Despite these benefits, businesses underutilize mediation in international settings in part because of unpredictable enforcement practices predicated on varied national policies. This Comment considers the potential for enforcing mediated settlements as arbitral awards under the New York Convention. Enforcement under the New York Convention requires a series of modifications to mediation procedure. The Convention affects contracting, convening, caucusing, and the availability of creative solutions to disputes. Although waivers prove promising to resolve procedural challenges, substantive due process challenges present additional problems. Since the New York Convention was designed for immediate deployment, it fails to accommo¬date materially altered circumstances unlike contract and consent decree systems. These challenges illustrate the imperfect fit between mediation procedure and arbitration enforcement. Parties to a dispute must carefully weigh the loss in pro¬cedural efficiencies and public policy review against the relative certainty of international enforcement when deciding whether to pursue a mediated settlement under the Convention.

School Reconstitution Under No Child Left Behind: Why School Officials Should Think Twice

The No Child Left Behind Act (the Act or NCLB) was enacted with the laudable aim of improving education through a system of accountability for schools and school districts. The Act provides for a system of escalating punishments for schools that fail to make adequate yearly progress toward the goal of full student proficiency in core subjects. One of the options that districts have for dealing with repeatedly failing schools is reconstitution, in which most or all of a school’s staff are replaced. This Comment argues that significant legal liability may fall on those districts that choose reconstitution over NCLB’s less harsh provisions. The prospect of arbitrariness or perceived inequity in deciding which schools will face reconstitution, the inherent problems in using existing standardized tests to determine which teachers are retained at struggling schools, and potential conflicts with contracts and collective bargaining agreements all suggest potential legal challenges that school staff and other parties affected by reconstitution could pursue to stop the implementation of reconstitution. Furthermore, this Comment contends that a number of practical consid¬erations counsel against choosing reconstitution over NCLB’s less harsh penalty provisions. In particular, the negative effect that reconstitution is likely to have on the quality of teachers and instruction at failing schools—those that most desperately need high-quality teachers and instructional methods—should give school officials pause before choosing this option. And the choice, in many states, to demand increasing levels of improvement in later years of NCLB reform threatens to expose more and more schools to this negative effect. The loss of legitimacy and morale that would attend the labeling of a large number of schools as failing, and the upheaval caused by reconstitution in so many schools counsel further against reconstitution. While NCLB and the concept of account¬ability are valid, school officials need to take care that the methods used to hold schools accountable do not end up punishing the children that the Act is intended to help. This Comment warns that reconstitution threatens to do just that.

Strict Judicial Scrutiny

The history and practice of strict judicial scrutiny are widely misunderstood. Historically, the modern strict scrutiny formula did not emerge until the 1960s, when it took root simultaneously in a number of doctrinal areas. It did not clearly originate in race discrimination cases, as some have suggested, nor in free speech jurisprudence, as Justice Harlan once claimed. Although strict scrutiny is widely assumed to be “strict in theory, but fatal in fact,” judicial practice in applying it has been complex, even conflicted. There are at least three identifiable versions of strict scrutiny, all subsumed under the same label. The result is uncertainty and sometimes confusion about which version the U.S. Supreme Court will apply in which cases. Some of the confusion arises from the strict scrutiny test’s vague and ambiguous terms, which leave critical questions unanswered. Seeking answers to those questions through normative rather than doctrinal inquiry, this Article argues that the strict scrutiny test is best understood as mandating a proportionality inquiry. At least when challenged regulations would at best reduce risks or incidences of harm, rather than extirpate them completely, courts applying strict scrutiny must ask whether the benefits justify the costs in light of regulatory alternatives that would trench less deeply on constitutional rights but also be less effective in promoting their goals.

The Default Legal Person

This Article explores the conceptions of responsible agency that informed legal analysis in nineteenth-century America. Standing behind the “reasonable man” famously drawn by Oliver Wendell Holmes, Jr., there was a second figure, which I call the “default legal person,” who personified mental attributes an individual needed to possess— at a minimum—in order to be deemed a legally accountable agent. This default legal person, I argue, was first articulated in the post-Revolutionary period by jurists drawing on new “enlightened” forms of Protestantism, and particularly on the Scottish Common Sense philosophy in which they were schooled, in order to delineate the mental prerequisites of legal responsibility. The figure they constructed was, in essence, a creature of Common Sense, one divinely endowed with intellect, free will, and moral sense. Turning to the law reports published over the course of the century, and focusing more particularly on the little-studied civil side of the docket, we find that judges tended to deploy the default legal person in the same fashion across cases and time. In any instance in which a plea of incapacity was made, this legal figure served to set the threshold of mental competence—to illustrate how much “mind” a person needed for a particular civil act or wrong to be attributed to him. Yet this is not to say that the threshold of capacity was set at the same level in every doctrinal field. To the contrary, judges altered the character of the default legal person as they transposed it from one field of law to the next, suggesting as they did that the specific mental attributes one needed to be a competent legal actor differed, depending upon the nature of the act involved—whether it was a will, contract, deed, or tort. Across all doctrinal fields, however, judges faced a similar and perplexing problem: How could they determine whether a given individual actually lacked the capacity to act with feeling, intelligence, prudence, or malice? Was it sufficient to show that the act itself was eccentric, or was it necessary to demonstrate that the party in question suffered from some sort of mental disease, as defined by medical men?

The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General

In 2001, in Buckhannon Board “&” Care Home, Inc. v. West Virginia Department of Health and Human Resources, the U.S. Supreme Court rejected the catalyst theory for recovery of attorney’s fees in civil rights enforcement actions. In doing so, the Court dismissed concerns that plaintiffs with meritorious but expensive claims would be discouraged from bringing suit, finding these concerns “entirely speculative and unsupported by any empirical evidence.” This Article presents original data from a national survey of more than two hundred public interest organizations that call into question the Court’s empirical assumptions. These data indicate that organizations that take on paradigmatic public interest cases, such as class actions seeking injunctive relief against government actors, are the most likely to be negatively affected by Buckhannon. In addition, our respondents report that Buckhannon encourages “strategic capitulation,” makes settlement more difficult, and discourages attorneys from representing civil rights plaintiffs. We argue that these far-reaching effects herald a shift away from private rights enforcement toward more government power both to resist rights claims and to control the meaning of civil rights.

Interpreting Communities: Lawyering Across Language Difference

As the rapid growth of immigrant communities in recent years transforms the demography of the United States, language diversity is emerging as a critical feature of this transformation. Poor and low-wage workers and their families in the aggressively globalized U.S. economy increasingly are Limited English Proficient, renewing longstanding debates about language diversity. And yet, despite a growing awareness of the challenges posed by limited English proficiency to the social, economic, political, and cultural well-being of poor immigrants today, relatively little attention has been paid to the role of language difference in poverty lawyering. This Article confronts the complexities of lawyering across language difference. Starting with the principal model for poverty lawyering—client-centeredness—it suggests the inadequacy of the model for meeting the challenges of language difference, particularly when an interpreter is interposed in the paradigmatic lawyer-client dyad. After exploring the nature of interpretation and the role of interpreters, the Article argues in favor of a more collaborative relationship among lawyers, clients, and interpreters than is often seen in poverty law practice. Specifically, it suggests that the disruption effected by the introduction of an interpreter may be more productive than is typically realized, and invites a normative reconceptualiztion of the traditional lawyer-client relationship. Ultimately, the Article urges the embrace of an emerging set of practices known as community interpreting, and argues that its increased attention to cultural context, third-party relationships, and community involvement is consistent with the methods and goals of community lawyering.