UCLA Law Review Volume 57, Issue 1
Is there a constitutionally protected right to choose one’s name? This Comment seeks to answer this question and to evaluate current government control over the name choices of adults. It first discusses the conflicting interests in names as identification and communication tools, as an expressive medium, and as a com- ponent of identity. It then summarizes the current law of name changes. Next, the Comment explores potential First Amendment free speech challenges and potential Fourteenth Amendment substantive due process challenges to existing name law. Finally, it discusses several policy reasons for altering the existing statutory schemes and ways that states might do so.
Access to public education is undeniably important, particularly in the context of the juvenile justice system. It is especially difficult for juvenile wards to receive an adequate education in California, which currently has one of the worst juvenile justice systems in the nation. This Comment examines the current legal responses to California’s state and local juvenile correctional facilities’ frequent violations of the statutory minimum educational standards. Taxpayer lawsuits that have been filed against California juvenile facilities have resulted in settlements through the use of consent decrees. This Comment argues that consent decrees are an improper solution to the lack of education in juvenile facilities. Consent decrees have numerous problems, including their lack of precedential value and their potential to produce unjust results. Furthermore, consent decrees have left the state of education in California juvenile facilities in a virtually unchanged position. This Comment analyzes several potential alternatives to the use of consent decrees and proposes a solution that involves legislative reform coupled with the use of court-based adjudication as a reactive measure.
Farmers throughout the industrialized world grow hemp legally as a source for a diverse range of products including foods, fabrics, plastic, cosmetics, and building materials. Although hemp was once widely grown in the United States, modern efforts to cultivate hemp have been frustrated by federal drug-control laws because the Drug Enforcement Administration (DEA) does not distinguish between industrial hemp and psychotropic marijuana. Over the past decade, many states have enacted legislation liberalizing their laws regulating industrial hemp, and in 1999, North Dakota became the first state to create a full licensing scheme for hemp cultivation. However, farmers’ efforts to benefit from their state licenses have been stymied by an inability to obtain licenses from the DEA, licenses that are required under federal law. This Comment examines the legislative history of the federal laws regulating hemp and marijuana, and the standards that the DEA is directed to apply when reviewing the applications of prospective industrial hemp farmers. It argues that, pursuant to the factors outlined by Congress, the DEA cannot legitimately deny or delay licenses to applicants who have been licensed under state regulatory systems like North Dakota’s. Finally, it explores possible avenues of recourse available under the Administrative Procedure Act for hemp-farming applicants whose requests for federal licensing are not timely approved.
How do we prevent excessive risk taking in the financial markets? This Essay offers a strategy for regulating financial markets to better prevent the kind of disaster we saw during the Financial Crisis of 2008. By developing a model of risk-manager decisionmaking, this Essay illustrates how even “good people” acting in utterly rational and expected ways brought us into economic turmoil. The assertion of this Essay is that the root cause of the Financial Crisis was systemic moral hazard. Systemic moral hazard poses a unique challenge in crafting a regulatory response. The challenge lies in that the best response to systemic moral hazard is “predictive prevention.” It is inherently difficult to reward individuals for producing predictive prevention. Unsurprisingly, markets fail to produce it at optimal levels and thus cannot prevent systemic moral hazard and the kind of crises that ensue. The difficulty in valuing predictive prevention is seen when we model how risk managers make decisions regarding the prevention of excessive risk. The model reveals how the balance can be tipped in favor of risk taking that leads to systemic failure and broad social harm. The model also reveals how regulation might work to reset the balance to one that is superior for society. We can achieve optimal risk- taking decisionmaking in two ways: (1) by requiring all asset managers in the market to put their own money at risk in their trading decisions; and (2) by requiring all asset managers to use “best practices” in managing risk, or else be subject to legal liability. These prescriptions arise out of a regulatory strategy that accepts the need to balance the benefits of risk taking in financial markets (and the consequent inevitabil- ity of some financial failure) with the desire to avoid excessive risk taking and the costs of systemic collapse. The focus of this strategy is on those instances in which we cannot trust ourselves to be prudent.
The influence of banks and other private lenders pervades public companies. From the first day of a lending arrangement, loan covenants and built-in contingency provisions affect managerial decisionmaking. Conventional corporate governance analysis has been slow to notice or account for this lender influence. Traditionally, corporate governance discourse has focused only on corporate law arrangements. The few existing accounts of creditors’ influence over firm managers emphasize the drastic actions creditors take in extreme cases—when a firm is in serious trouble—but in fact, private lender influence is a routine feature of corporate governance even absent financial distress. While lenders of course intervene when their borrowers encounter distress, recent empirical work demonstrates private lender influence at much earlier points in the debtor-creditor relationship. In addition to the effects of covenant constraints and other initial loan terms, a subsequent covenant violation may trigger active lender intervention, including imposition of additional limits on managerial discretion. Covenant violations and lender intervention, however, do not typically signal the borrower’s financial distress. Instead, this interactive response to ex post contingency is routine. Both borrower and lender expect future modification of their deal terms, and they contract in anticipation of it. Initial covenants and subsequent violations effectively reallocate degrees of control from managers to lenders, in a fluid process that commences with the inception of the lending arrangement. In this Article, I explain the regularity of lender influence on managerial decisionmaking—“lender governance”—comparing this routine influence to conventional governance arrangements and boards of directors in particular. I show that the extent of private lender influence rivals that of conventional governance mechanisms, and I discuss the doctrinal and policy implications of this unsung influence. Accounting for lender governance requires a new examination of corporate fiduciary duties, debtor-creditor laws, and the regulatory reform proposals that have emerged to address the current financial crisis. I also discuss the implications of private lender influence for future corporate governance research.
The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied—and deci- sions on the merits of core constitutional questions avoided—by court rulings that the challengers lack standing to sue under the Supreme Court’s 1972 decision in Laird v. Tatum. Last year, Congress amended the law governing foreign intelli- gence surveillance; the law has been challenged in court, and once again the issue of the challengers’ standing is at the heart of the case. In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance. Unfortunately, the law of standing in the sur- veillance context remains murky and in important respects appears out of line with the larger body of standing jurisprudence. In some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create. This Article argues that the divergent strands of jurisprudence interpreting Laird can be synthe- sized with general principles of standing law into a coherent and workable doctrine that will open the courthouse doors just wide enough to permit courts to adjudicate the crucial constitutional questions presented by new and emerging regimes of government surveillance.
This Article explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others. Under the Supreme Court’s third-party doctrine, we have no constitutionally protected expectation of privacy in what we reveal to other persons. The effect of this doctrine is to leave many aspects of ordinary life shared in the company of others constitutionally unprotected. In an increasingly socially networked world, the Fourth Amendment may fail to protect precisely those liberties—to live in the company of others free from state surveillance and intrusion—the Constitution should protect. Against the background of the third-party doctrine, we guarantee our privacy only by avoiding ordinary acts of interpersonal sharing. By contrast, the Court in Lawrence explains that intimate conduct occurring within protected personal relationships constitutes a private sphere wherein government may not intrude. Because the third-party doctrine views privacy narrowly, this Article develops a framework for revising Fourth Amendment jurisprudence in light of Lawrence’s protection for interpersonal liberty. By following the lessons of Lawrence, this Article proposes a way to reorient Fourth Amendment jurisprudence away from its focus on privacy in order to protect interpersonal liberty.