UCLA Law Review Volume 58, Issue 5


Give Me Your Tired, Your Poor, and Your Queer: The Need and Potential for Advocacy for LGBTQ Immigrant Detainees

As immigration detention has increased in the United States over the past two decades, legislative changes have placed LGBTQ immigrants at a higher risk of being detained because of deportation policies that focus on poverty-related crime and increasingly stringent asylum requirements. Once detained, these immigrants are subjected to significantly higher rates of violence and are often denied access to essential medical care. Exacerbating the problems of detention for all detainees, there are no substantive legislative or regulatory standards governing detention conditions, and the Department of Homeland Security’s internal standards are poorly enforced and often not even binding. While there are constitutional limits to what detainees can be subjected to, most circuit courts have held that detainees are not entitled to any protections beyond those given criminal prisoners. Litigation by LGBTQ people in criminal incarceration has yielded some successes that may be imported into the detention context to improve conditions, but litigation is an uncertain and difficult route for advocates to take, particularly given uncertainties about detainees’ access to the court system. Ultimately, the most meaningful advocacy may be outside of the litigation arena, advocating for legislative and regulatory changes. One obvious goal of advocacy may be to increase standards and oversight for detention conditions, but this may be difficult to achieve meaningfully and may result in an unintended entrenchment of policies favoring increased detention. A more promising route is for LGBTQ-focused organizations to work with other stakeholder communities in advocating for significant decreases in the number of people detained.

Multiracial Work: Handing Over the Discretionary Judicial Tool of Multiracialism

The rise of the mixed-race population and its implications for our society has received attention in current discourse and media coverage. Some see it as a portent of the postracial world to come; others see it as just another challenge to which antidiscrimination law must adjust. Despite this new attention, racial mixing is not a new phenomenon by any measure. What have changed are the methods of categorization. By realizing this fact, we can repudiate the claim that increased declarations of mixed-race identity signal a major shift and instead focus on readjusting outdated legal schemes that were predicated on old methods of monoracial categorization. This Comment addresses the conflict between new categorization methods for mixed race in data gathering as well as the noncognizable mixed-race- based claims in current Title VII doctrine. Mixed-race individuals face unique harms themselves, and Title VII’s refusal to acknowledge mixed race results in dismissal of claims. After addressing two similar proposals that do not go far enough to remedy harms, this Comment proposes taking the discretion of framing race from judges and placing it in the hands of plaintiffs. Under this Comment’s proposal, plaintiffs can frame race as they experience the discriminatory use of race—including the mixed- race classification—against them, while allowing employers to rebut the plaintiffs’ claimed race by showing that they perceived the plaintiffs’ race differently.

Asymmetrical Jurisdiction

Most people—and most lawyers—would assume that the U.S. Supreme Court has jurisdiction to review any determination of federal law by an inferior court, whether state or federal. And there was a time when it was so. But the Court’s recent justiciability decisions have created a perplexing jurisdictional gap—a set of cases in which state court determinations of federal law are immune from the Supreme Court’s appellate jurisdiction. The Court has thus surrendered a portion of its supremacy and thereby undermined the policies that underlie its appellate jurisdiction. In an effort to address this problem, the Court has created a strange exception to its justiciability doctrines that turns the rationale for appellate jurisdiction on its head. The Court has held that it may exercise appellate jurisdiction over otherwise nonjusticiable cases only where the state court has upheld the claimed federal right. As a matter of history and of doctrine, however, this is precisely the set of cases where Supreme Court review is least needed. A number of scholars have proposed attacking the problem by requiring state courts hearing federal questions of law to apply federal justiciability doctrines. But this view is difficult to justify doctrinally, and, paradoxically, it risks undermining federal interests by preventing state court enforcement of federal rights and policies in a broad swath of cases. This Article proposes a more coherent solution to the jurisdictional gap—restoring the understanding of the Supreme Court’s appellate jurisdiction that was held by the founding generation: namely, that it extends to review of all state court determinations of federal law that are adverse to the claimed federal right. This approach finds ample support in the text and history of Article III’s grant of Supreme Court appellate jurisdiction and has two principal advantages over current doctrine and previous proposals for reform. First, it better serves the policies underlying Supreme Court appellate jurisdiction by restoring the Court’s supremacy as to all determinations of federal law by inferior courts. Second, it is more consistent with the Supreme Court’s practice in other doctrinal areas of treating its appellate jurisdiction over state court determinations of federal law as exempt from certain constitutional restrictions on the federal judicial power. It thus eliminates a puzzling inconsistency in the Court’s treatment of its own appellate jurisdiction in different contexts.

Equal Opportunity for Arbitration

Despite talk of a “federalism revival,” state law is quietly losing ground in the U.S. Supreme Court, and the arbitration area is no exception. For as currently interpreted by the lower courts, the Federal Arbitration Act (FAA) is on course to preempt a vast array of legislation that serves important public interests but that is only tenuously related to arbitration. The Court has implicitly endorsed this trajectory in AT&T Mobility LLC v. Concepcion (decided as this Article went to press), leading many to abandon hope of a principled judicial response to this mounting problem of overpreemption. In this Article, I offer a new model for thinking about the extent to which the FAA should preempt state laws that do not target arbitration for special regulation but that are also not general enough to escape preemption under settled doctrine. I argue that the current predicament of overpreemption should be understood less as a symptom of the law’s rabid favoritism toward arbitration (as is commonly supposed) and more as a symptom of a basic misapprehension of the FAA’s latent principle of nondiscrimination. Contrary to popular belief, that principle does not demand the impossible feat of placing arbitration agreements on the “same footing” as all other agreements. Instead, it seeks the more modest goal of leveling the playing field between arbitration and litigation—or, as I put it here, equal opportunity for arbitration. I illustrate how a more sophisticated engagement with the logic of equal opportunity can help lower courts fulfill the FAA’s nondiscrimination mandate without inevitably displacing state law just because it adversely impacts arbitration agreements. Considering controversial examples from the recent past, I conclude with concrete guidance for how my proposed model might be implemented in practice.

Melville B. Nimmer Memorial Lecture: What Is a Copyrighted Work? Why Does It Matter?

Each year, the UCLA School of Law hosts the Melville B. Nimmer Memorial Lecture. Since 1986, the lecture series has served as a forum for leading scholars in the fields of copyright and First Amendment law. In recent years, the lecture has been presented by many distinguished scholars. The UCLA Law Review has published these lectures and proudly continues that tradition by publishing an Article by this year’s presenter, Professor Paul Goldstein.