UCLA Law Review Volume 56, Issue 2

Taking the "Hate" Out of Hate Crimes: Applying Unfair Advantage Theory to Justify the Enhanced Punishment of Opportunistic Bias Crimes

Should bias crime perpetrators who, for personal gain, intentionally select victims from social groups that they perceive to be more vulnerable be punished similarly to typical bias crime perpetrators who are motivated by group hatred? In this Comment, I apply unfair advantage theory to argue that enhancing the punishment of opportunistic bias crimes is proper because of the perpetrators’ motivations and the crimes’ harmful effects. In its most basic form, unfair advantage theory justifies punishment based on the unfair advantage that criminals obtain over law-abiding members of society by violating the law. I contend that the enhanced punishment of opportunistic bias crimes is justified because the advantages that perpetrators obtain by committing them are greater than the advantages obtained from parallel crimes. In terms of motivation, I argue that opportunistic bias crimes warrant additional punishment because perpetrators unfairly and deliberately capitalize upon perceived disadvantages stemming from their victims’ group membership. In terms of harmful effects, I argue that opportunistic bias crimes warrant additional punishment because such crimes perpetrate the belief that certain victims are easier crime targets because of disadvantages stemming from victims’ group membership. Perpetuating this belief enables potential offenders to continue to profit unfairly from exploiting the perceived disadvantages tied to group membership by committing opportunistic bias crimes in the future. I also posit that the application of unfair advantage theory to defend the enhanced punishment of opportunistic bias crimes is supported by all three fundamental theories of punishment: retribution, utilitarianism, and denunciation.

Unconsciously Regarded as Disabled: Implicit Bias and the Regarded-As Prong of the Americans With Disabilities Act

Much scholarly work has been written detailing the shift away from the original congressional intent behind the Americans with Disabilities Act (ADA), starting with the landmark U.S. Supreme Court decision in Sutton v. United Air Lines. While the U.S. Congress intended the protections under the ADA to be broad, courts have interpreted the act very narrowly, denying protections for many whom Congress intended to protect. Missing from this scholarship, however, is an examination of how the shift has been particularly harmful for potential plaintiffs in light of recent findings in behavioral science. More discrimination than once thought is the result not of explicit and conscious attitudes, but of unconscious implicit bias. The specific ways in which the Court narrowed the ADA resulted in a lack of protection for victims of implicit bias discrimination. Further, evidence shows that implicit bias against individuals with disabilities is particularly pronounced in American society. It is primarily this kind of discrimination that courts have been unable to protect against after Sutton. The ADA Amendments Act of 2008 goes a long way towards reinstating protections for those whom are discriminated against as the result of implicit bias. This Comment cautiously endorses the Amendments and calls for increased research into how implicit bias affects individuals with disabilities. The fact that the Amendments are not a perfect solution to the prevalence of implicit bias discrimination may be a sign that this particular type of discrimination is not adequately well known and deserves further research and attention.

The Birth of Rule 144A Equity Offerings

In a groundbreaking deal closed in May 2007, Oaktree Capital Management LLC, a leading private U.S. hedge fund advisory firm, sold a 15 percent equity stake in itself for $880 million. The deal is groundbreaking because it was not structured as an initial public offering (IPO), traditionally the only option for an equity offering of this size by a private company. Instead, it was structured as a private placement under Rule 144A of the Securities Act of 1933, which enables a company to market and sell securities through an underwriter to institutional investors without registering the offering with the Securities and Exchange Commission. Oaktree’s novel use of Rule 144A was driven by two factors. First, passage of the Sarbanes-Oxley Act of 2002 made it much more expensive to be a public company, thereby decreasing the attractiveness of an IPO. Second, the emergence of a centralized trading market for Rule 144A equity securities improved their liquidity, thus increasing the attractiveness of a Rule 144A equity offering. Consequently, for some firms the value of pursuing a Rule 144A equity offering exceeded the value of pursuing an IPO. The purpose of this Article is to explore this development. Specifically, this Article analyzes the legal framework of Rule 144A and details the burgeoning Rule 144A trading market. It then compares the costs and benefits of an IPO to those of a Rule 144A equity offering and theorizes about a firm’s calculus for choosing one structure over the other. Finally, this Article argues that Rule 144A equity offerings are firmly grounded in public policy and thus recommends regulatory reforms to improve their viability.

Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice

Several state legislatures now require that before a woman may consent to an abortion, she must first undergo an ultrasound and be offered the image of her fetus. The justification is that without an ultrasound, her consent will not be fully informed. Such legislation, the latest move in abortion regulation, supposes that a woman who sees the image will be less likely to abort. This Article explores how visual politics has combined with visual technology, and how law has seized upon both in a campaign to encourage women to choose against abortion. While rarely analyzed, the significance of seeing, or what one court has called “sensory and contemporaneous observance,” in fact appears throughout the law. This Article develops a “visuality of law,” focusing specially on the treatment of fetal imagery. Drawing upon medical and ethnographic literature on sonography, this Article situates the regulatory appeal of mandatory ultrasound within a preexisting visual familiarity with the fetus. I argue that while a welcome and rewarding experience in the context of wanted pregnancies, ultrasound becomes pernicious when required by law in connection with abortion. The argument I develop is that not only is an abortion decision itself protected, but so is the deliberative path a woman takes to reach that decision. Mandatory ultrasound intrudes upon that protected area of decisionmaking in several respects. First, simply by virtue of having an ultrasound, a pregnant woman is promoted into the category of mother and it is against this conscripted status that she must proceed. Second, unlike other compulsory forms of abortion disclosure, the statutes require the woman to use her body to produce the very information intended to dissuade her from pursuing an abortion. The resulting fetal image is intended as a self-evident statement about the meaning of human life. But characterizing the fetus as a child, as most ultrasound statutes do, is a political description, not a scientific one. It confuses medically informed consent with what I identify as morally informed consent, that realm of personal considerations that are a woman’s alone to determine. Imbued with indelible social meaning, the mandatory ultrasound requirement replaces consent with coercion—not about the ultimate decision, but about how a woman chooses to get there.

International Travel and the Constitution

This Article makes the case for the fundamental right of U.S. citizens to leave their country and return home again. Surprisingly, Americans do not enjoy such a fundamental right. Under current U.S. Supreme Court precedents, the right to travel abroad is merely an aspect of liberty that may be restricted within the bounds of due process. The controversial No Fly List is one such result. Anyone whose name appears on this government-run database (or one of several variations on it) may find his or her air travel prohibited or subject to varying levels of restriction. Although the so-called War on Terror raises new concerns about a right-to-travel case law developed during the Cold War, no one has yet made the case for stronger constitutional protection for international travel. The Article begins with an in-depth case study (based on interviews and primary sources) of two citizens who were recently denied permission to return to the United States for more than five months. The Article proceeds to explain the origins of weak support for foreign travel and then advances an unconventional source for its heightened protection. Whereas most unenumerated fundamental rights seek their foundation in the substantive due process guarantees of the Fifth and Fourteenth Amendments, I advance a more straightforward textual source: the Citizenship Clause of the Fourteenth Amendment. After developing the historical and theoretical support for my argument, I examine the policy implications of strict judicial scrutiny of travel restrictions, including the No Fly List, which are intended to combat terrorism in a globalized world.