UCLA Law Review Volume 55, Issue 2


Employing Ex-Offenders: Shifting the Evaluation of Workplace Risks and Opportunities From Employers to Corrections

Employers would just as soon not hire ex-offenders. They see the potential for workplace violence or theft, negligent hiring liability, and public relations nightmares. Because current law places the burden on employers to evaluate the risk that a particular ex-offender poses on the job, but gives them few tools with which to make that evaluation, employers would rather err on the side of caution and turn ex-offenders away. This Comment shows that the current system of employer evaluations is based on exaggerated fears and leads to ex-offender unemployment, which is likely to make our communities less safe, rather than more. However, though tort reform and workplace antidiscrimination statutes are part of this Comment’s proposal, the solution to this problem cannot be found in the employment context alone. Instead, making ex-offender employment safe and rehabili¬tative will require cooperation between employers and corrections departments. Corrections departments currently evaluate ex-offender risk for commu¬nities and have access to information far superior to that provided to employ¬ers in background checks. Thus, as this Comment argues, employers should be encouraged to rely on assessments by corrections officers of any workplace risk an ex-offender applicant might pose. While this will be a positive step, this Comment goes further to suggest that corrections depart¬ments should have an even larger role to play in ex-offender employment: one based less on the sort of fear, discrimination, and avoidance of liability that drives our current system of risk evaluation by employers, and more on a commitment to reentry success through accurate information and community partnerships.

State Statutes Limiting the Dual Sovereignty Doctrine: Tools for Tribes to Reclaim Criminal Jurisdiction Stripped by Public Law 280?

Tribal sovereignty suffered greatly by the 1953 passage of Public Law 280, which gave certain states jurisdiction over the Indian country within their borders. However, recent cases show that tribes can preempt this state jurisdiction, and thereby reclaim some measure of sovereignty, if they prose¬cute crimes first—so long as the surrounding state has a statute abrogating the dual sovereignty doctrine and the tribal prosecution satisfies the various requirements of that statute. Not all affected states have these statutes; in those that do, the statutes are often difficult to trigger. This Comment answers the ensuing questions: Which Public Law 280 states have such statutes? What are their requirements? If tribes can avail themselves of these statutes, should they go out of their way to do so? This Comment argues that tribes should think carefully about enlisting the protections of these statutes. Taking active steps to do so would require tribes to make their laws and prosecutions mirror those of the surrounding state, thus requiring tribes to abandon their own conceptions of justice.

Overworking the Presumption of Sanity: Clark's Use of Mental Disease Evidence to Negate Mens Rea

The presumption of sanity is a concept in criminal law used to allocate burdens relating to the insanity defense. In Clark v. Arizona, the U.S. Supreme Court relied on the presumption to affirm the exclusion of evidence introduced to negate mens rea. This Comment discusses the problems with using the presump¬tion to exclude evidence from mens rea determinations and examines other ways to regulate mental disease evidence, which require modifying Justice Souter’s catego¬rization of such evidence in Clark. This Comment argues that mental disease evidence should be admissible if it shows a potential mistake of fact that bears directly on statutory intent. This form of defense—showing failure of proof of a statutory element—is conceptually distinct from an affirma¬tive defense of legal insanity. The latter deals with whether a defendant is legally responsible for a crime, rather than whether the defendant committed the offense charged. The presump¬tion of sanity relates solely to the insanity defense; it has no bearing on statutory intent and should not be used to exclude evidence from such a determination.

Tied Up in Knotts? GPS Technology and the Fourth Amendment

Judicial and scholarly assessment of emerging technology seems poised to drive the Fourth Amendment down one of three paths. The first would simply relegate the amendment to a footnote in history books by limiting its reach to harms that the framers specifically envisioned. A modified version of this first approach would dispense with expansive constitutional notions of privacy and replace them with legislative fixes. A third path offers the amendment continued vitality but requires the U.S. Supreme Court to overhaul its Fourth Amendment analysis. Fortunately, a fourth alternative is available to cabin emerging tech¬nologies within the existing doctrinal framework. Analysis of satellite-based tracking illustrates this last approach. The Global Positioning System (GPS) allows law enforcement officials to monitor an individual’s precise movements for weeks or months at a time. GPS technology not only is substantially different than anything the Court has previously considered, but also is a substantial threat to fundamental notions of privacy. By illustrating how, with only minor tweaking, existing Fourth Amendment law can effectively rein in intrusive applications of this one emerging technology, this Article begins to construct an analytical framework that can be applied more broadly to future technological enhancements. This Article begins by reviewing the science and capabilities of GPS-enhanced surveillance. It concludes that satellite-based tracking is a powerful investigative tool that enables authorities to monitor the movements (both indoors and out) of an unlimited number of people for weeks or months at a time. This Article then examines the Court’s historical treatment of techno¬logically enhanced surveillance, and shows that the intrusiveness of an emerging technology is critical to its constitutional treatment. Considering the intrusiveness of GPS-enhanced tracking, this Article concludes that the unfettered use of such surveillance is inimical to fundamental Fourth Amendment principles. The most defensible treatment of GPS tracking under the existing analytical framework is that it is a search and, as such, must be preauthorized by a warrant issued only upon probable cause.

The Internet and the Project of Communications Law

The Internet offers the potential for economic growth stemming from online human communications. But recent industry and government actions have disfavored these possibilities by treating the Internet like a content-delivery supply chain. This Article recommends that the Internet be at the center of communications policy. It criticizes the nearly exclusive focus of communications policy on the private economic success of infrastructure and application providers, and suggests that communications policy be focused on facilitating communications themselves.

Can Regulation Evolve? Lessons From a Study in Maladaptive Management

In the active literature on regulatory reinvention, many have pointed to the Habitat Conservation Plan (HCP) program of the Endangered Species Act (ESA) as a successful example of the potential for collaborative and experimentalist regulatory innovation. Yet, despite its frequent mention as a prototype for fostering public participation and adaptive decisionmaking, no thorough, systematic evaluation of the program as a form of regulatory innovation exists. By integrating data from recent scientific studies, interviews and surveys of agency officials, newspaper investigations, and even unpublished biological databases, this Article serves as the first cross-disciplinary, comprehensive assessment of this pioneering but ultimately defective program. The Article demonstrates that though a few HCPs have served as truly promising examples of the value of broad participation and adaptation in regulation, the HCP program as implemented largely allows for the proliferation of private, ill-considered agreements between agencies and developers that evade the ESA’s otherwise strict prohibitions. More fundamentally, the Article contends that the HCP regulatory experiment is failing because the agencies charged with administering it have never seriously treated it like an experiment. Regulatory programs must themselves be periodically and systematically monitored for agencies to learn from and adjust to regulatory mistakes and successes. As the legislative and executive branches yet again contemplate amending the ESA, the HCP program serves as a crucial lesson in regulatory design. Only by assiduously attending to the incentives of both agency personnel and applicants in order to cultivate meaningful participation and systematic regulatory adaptation can the HCP program—and indeed any regulatory program—ever evolve.