UCLA Law Review Volume 56, Issue 6


Addressing Youth Bias Crime

Bias crime statistics legislation does not require law enforcement agencies to collect data on the ages of bias crime perpetrators, and bias crime penalty enhancements do not distinguish between youth and adult offenders. As a result, little data exists on youth bias crime, and the consequences of applying bias crime penalty enhancements to adult and youth offenders are generally the same: increased incarceration or additional fines. This Comment unveils the troublesome frequency of youth bias crimes and illustrates that the justifications underlying the application of bias crime penalty enhancements to adult offenders do not apply similarly to youth bias crime offenders. A synthesis of the limited existing data on youth bias crime reveals that, on average, one in every four bias crimes involve at least one youth offender and approximately three in every five bias crimes committed against youth victims are perpetrated by youth offenders. Rather than increase incarceration sentences or impose additional fines, I propose that bias crime penalty enhancements, as applied to youth bias crime offenders, should mandate rehabilitation programs to force youth offenders to confront the biases that motivate their crimes. I contend that requiring youth bias crime offenders to complete these programs is more consistent with the goals of juvenile justice than more punitive penalty-enhancement alternatives.

Narrowing the Definition of “Dwelling” Under the Fair Housing Act

The Fair Housing Act was enacted in order to protect certain groups against discrimination in housing. The Act extends this protection to any “dwelling,” but its coverage is not well defined for nontraditional sleeping facilities such as homeless shelters, substance abuse treatment facilities, or tent cities. Courts have applied the Fair Housing Act to any residence—defined by one court as “a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit.” Courts have generally focused on occupants’ length of stay as the determinative factor in examining the scope of the dwelling requirement in the Act. Homeless shelters and battered women’s shelters have long been operated on a single-sex basis, and some shelters place restrictions on familial status. However, current law is still unclear on whether such facilities are subject to the prohibition on familial status and sex discrimination under the Fair Housing Act. The Ninth Circuit recently declared a single-sex men’s homeless shelter to be in violation of the Fair Housing Act. If adopted by other circuits, this holding would require the restructuring of many shelters to accommodate both sexes, expose shelters to costly litigation likely resulting in closures and reduced services to the homeless, and reduce further the privacy and security of shelter guests. In this Comment, I argue that courts’ focus on length of stay is too narrow and present an alternative test for dwellings under the Fair Housing Act.

Nonwaiver Agreements After Federal Rule of Evidence 502: A Glance at Quick-Peek and Clawback Agreements

After decades of struggle with paper discovery rules in an age of electronic discovery, President George W. Bush signed Federal Rule of Evidence 502 into law on September 19, 2008. Rule 502 is aimed at reducing the costs associated with privilege review. More specifically, Rule 502 gives more judicial support for nonwaiver agreements, which are agreements between adversarial parties that preserve privilege when one party inadvertently discloses a privileged document to the other party in discovery. Rule 502 requires courts to uphold these agreements between parties who enter into them and to enforce them, even against third parties, if the agreement is incorporated into a court order. However, Rule 502 may be far too expansive, especially when its comments suggest that courts may support these agreements irrespective of the level of care taken in privilege review. This Comment urges courts to limit such agreements and justifies this conclusion through two central arguments and a suggested remedy. First, I explain why these agreements contravene public policy, particularly focusing on the ways in which a lack of privilege review may hurt clients. Courts therefore should have the power to render them unenforceable. Second, I argue that courts in particular are the best enforcement mechanism. As institutional controls, they have many more advantages over other forms of control; moreover, courts have refused to enforce nonwaiver agreements in the past. Finally, I set forth a potential guide that courts facing this question could follow. Rule 502 takes a step in the right direction in reducing the burdens of privilege review, but courts must take care to interpret the rule in a way that allows it to function as a strong tool for attorneys yet at the same time limit it so that it does not result in harm to clients.

Ezra Pound’s Copyright Statute: Perpetual Rights and the Problem of Heirs

This Article explores the historical and present-day significance of proposals for copyright reform advanced in 1918 by the controversial American poet, Ezra Pound. These proposals have never been discussed by legal scholars and have received but scant attention from literary scholars. Yet, like William Wordsworth and Mark Twain, whose efforts to reform copyright law are much better known, Pound is a major writer whose views shed considerable light on the state of copyright law and the conditions of authorship in his time. Pound’s proposed statute—offered as a “cure” for American book piracy—begins by making authors’ copyrights exclusive and perpetual, and goes on, surprisingly, to introduce broad compulsory-license provisions that would prevent authors and their heirs from interfering with later efforts to disseminate authors’ works and require publishers only to pay a fixed royalty on sales. The tension in Pound’s proposal between a perpetual, exclusive copyright and expansive compulsory licenses shows him to be an inheritor of two legal and economic traditions: on the one hand, a Lockean and Romantic belief in a strong property rule grounded in an author’s natural rights and unique personality, and, on the other, an anti-monopoly, free-trade preference for a liability rule that would encourage wide dissemination of affordable works to serve the public interest. As the author of such a dual-purpose proposal, Pound emerges as remarkably and presciently alert to the dangers currently posed by lengthy copyright terms unaccompanied by limitations that adequately protect the public. Today, the estates of James Joyce, T.S. Eliot, Marianne Moore, Samuel Beckett, and other modernist authors use extended copyrights to discourage or control use of those authors’ works by scholars, critics, and others. Pound’s perpetual, royaltybased copyright would, in principle, have removed or reduced such obstacles to the study and enjoyment of modernist authors. Moreover, Pound’s draft statute anticipates recent proposals by Richard Posner, Lawrence Lessig, and others for mitigating the conflict between the lengthy copyright monopoly and the needs of the public.

First Amendment Enforcement in Government Institutions and Programs

Courts typically apply their own, skeptical judgment to review free speech claims. But when the government is understood to be managing its own institutions (like schools, prisons, or the military) or its own programs (such as those providing abortion counseling or distributing arts grants), courts regularly abandon ordinary principles of First Amendment jurisprudence and defer to the judgments of other government decisionmakers. As they did recently in Morse v. Frederick and Garcetti v. Ceballos, courts frequently review challenged speech restrictions only for their reasonableness, or hold that restricted speech falls outside the scope of First Amendment protection. This Article begins by exploring the basis for the courts’ minimal review. Clarifying current case law and commentary, the Article identifies two distinct accounts: a weak norms theory positing that free speech principles have very limited significance within government institutions and programs, and a judicial underenforcement theory contending that the principles are important in those contexts, but that courts are declining to assume primary responsibility for interpreting or enforcing them. Maintaining that the weak norms theory is exaggerated and thus alone provides insufficient justification for the courts’ minimal review, this Article argues that the underenforcement theory, in combination with elements of the weak norms theory, provides a persuasive normative account for why courts ought sometimes to resist applying traditional heightened review of speech restrictions within government institutions and programs. Though the combined theories provide a forceful account against traditional heightened review, they do not validate the courts’ practice of applying no more than reasonableness review. Because First Amendment principles remain important inside government institutions and programs, this Article contends that the courts’ current approach is flawed, and proposes an alternative model for courts to follow. In other contexts when the judiciary has declined primary interpretive and enforcement authority of legal or constitutional norms, courts have generally either refrained from influencing or directing other government decisionmakers’ judgments on those norms, or conditioned their deference to those judgments on the nature of the others’ decisionmaking processes. The former approach makes sense, the Article maintains, when courts have some confidence that other parties or processes will implement or protect the legal or constitutional norm at stake. When the interest to be protected involves individual rights, and in particular the rights of expressive minorities, as the First Amendment serves in significant part to protect, there is less reason for such confidence, and conditioning deference on the decisionmaking process is more appropriate. Advocating a “free speech conditional deference model,” the Article maintains that courts ought not to apply only reasonableness review or hold speech to be unprotected unless the restriction adheres to a formal speech policy. Because formal speech policies serve as an alternative means to judicial review for encouraging fidelity to First Amendment principles—policies encourage public deliberation on free speech concerns, promote equal treatment of speech by eliminating ad hoc decisionmaking, and help to check governmental abuses by facilitating accountability for speech restrictions— the Article argues that a policy requirement is an appropriate precondition for judicial deference.

Overcoming Overdisclosure: Toward Tax Shelter Detection

Every year, thousands of taxpayers and their advisors are required to mail special disclosure forms that reveal details of potentially abusive tax strategies to the Office of Tax Shelter Analysis of the Internal Revenue Service in Ogden, Utah. This mandatory disclosure regime has been widely praised as one of the government’s most effective weapons in its war on tax shelters. In contrast to this largely positive portrayal, however, this Article argues that the current tax shelter disclosure law is incomplete. While the primary aim of current law is to deter nondisclosure of information by taxpayers and advisors, my claim is that the government should also strive to prevent behavior that may be just as problematic to the IRS’s ability to detect and challenge tax shelters—overdisclosure of information. As this Article demonstrates, since the introduction of the tax shelter reporting rules in 2000, taxpayers and advisors have frequently disclosed to the IRS their participation in routine, nonabusive transactions or details of activities that are irrelevant to tax shelter detection. After investigating the sources of overdisclosure, I conclude that the tax law itself invites this response from distinct types of taxpayers and advisors. Conservative types overdisclose out of excessive caution, while aggressive types overdisclose in an attempt to avoid detection of abusive tax planning. As a result of the threats to tax administration posed by overdisclosure, I offer three novel proposals for proactively reducing its occurrence: the introduction of anticipatory angel lists when the IRS designates new listed transactions; the enactment of targeted overdisclosure penalties; and a non-tax documentation requirement for business taxpayers.