UCLA Law Review Discourse, Volume 58


A Journey of Faith, Love, and Teaching

Each year, the UCLA School of Law presents the Rutter Award for Excellence in Teaching to an outstanding law professor. On April 7, 2010, this honor was given to Professor Thomas Holm, the director of UCLA Law’s Lawyering Skills Clinical Program. UCLA Law Review Discourse is proud to continue its tradition of publishing a modified version of the ceremony speech delivered by the award recipient. Lawyering Skills is a five-credit, yearlong course, and is a required part of UCLA’s first-year curriculum. In Lawyering Skills, students are introduced to fundamentals of legal reasoning; the structure of objective and persuasive arguments; effective written analysis; the process of legal research; statutory and regulatory analysis; oral advocacy; fact investigation; and negotiation. The focus of the course is “practice-oriented legal analysis.” Students learn how to function as practicing lawyers, so they can succeed in their summer jobs and in their careers when they graduate. This Essay discusses Professor Holm’s initial foray into teaching, as well as the fundamental principles that have guided his approach to teaching the process of lawyering. A video of the award ceremony, including Professor Holm’s original remarks and video presentation, can be seen at http://holmrutteraward.com.

Unraveling the Exclusionary Rule: From Leon to Herring to Robinson—And Back?

The Fourth Amendment exclusionary rule began to unravel in United States v. Leon. The facts were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to a police officer who, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstand­ing arrest warrant. The California Supreme Court recently applied this line of cases in People v. Robinson to support the conviction of a man whose DNA was taken by correctional officials who misunderstood the scope of the state’s DNA database statute. This Essay shows how the Robinson court exceeded the boundaries of the U.S. Supreme Court’s good-faith exception. It then proposes several ways to modify or confine the exception to achieve better protection of the Fourth Amendment right to be free from unreasonable searches and seizures.

Damages, Injunctions, and Climate Justice: A Reply to Jonathan Zasloff

This Essay responds to an article by Jonathan Zasloff previously published in the UCLA Law Review in which he suggests that plaintiffs filing nuisance actions to address climate change should seek damages rather than injunctive relief and calculate damages based on a carbon tax. This Essay argues that, because a carbon tax is an estimate of the global damages resulting from greenhouse gas emissions, Zasloff’s proposal will result in overcompensating U.S. plaintiffs to the potential detriment of persons in other countries whose claim to damages from U.S. defendant-emitters is arguably stronger than that of U.S. plaintiffs. While contending that climate damages are best left to an international institution capable of adjudicating the global population’s competing claims to climate damages, this Essay argues that a carbon tax could supply courts with the missing metric for determining the appropriate level of emissions abatement required for defendants.

Protecting Truth: An Argument for Juvenile Rights and a Return to In re Gault

In the 1967 case In re Gault, the U.S. Supreme Court revolutionized juvenile criminal proceedings by holding that children were constitutionally entitled to legal counsel and the privilege against self-incrimination. In contrast to Miranda v. Arizona, decided the previous year, the Court’s reasoning was not centered on preventing involuntary confessions. Instead, the Court was concerned that information obtained from juveniles was untrustworthy—indeed, some children might confess to crimes they did not actually commit. Improved procedural protections were necessary to guarantee the accuracy of the factfinding process. Subsequent cases have moved away from this principle, and the Court has never held that children in criminal proceedings are entitled to greater constitutional procedural protections than adults. This retreat from Gault does not easily reconcile with increased research showing that children are fundamentally different from adults in comprehending and exercising their rights. Furthermore, advances in DNA analysis and other investigatory techniques have shown that false confessions are a very real phenomenon of particular danger to juveniles vulnerable to the coercive environment of an interrogation room. This Article discusses the importance of a return to Gault’s principles: providing juveniles with enhanced due process protections to ensure the accuracy of legal proceedings and to prevent wrongful convictions based on false confessions. Two proposals are discussed: a non-waivable right to legal counsel and mandated electronic recording of juvenile interrogations.

The Morality of Strategic Default

Responding to the argument that homeowners who strategically default on their mortgages are immoral and socially irresponsible, this Article argues that defaulting on a mortgage contract is not only morally acceptable, it may be the most responsible course of action when necessary to fulfill more important obligations to one’s family.

Harvard and Yale Ascendant: The Legal Education of the Justices From Holmes to Kagan

With the confirmation of Elena Kagan as a justice of the U.S. Supreme Court, eight of the nine sitting justices have graduated from only two law schools—Harvard and Yale. This Article frames this development in the historical context of the legal education of the justices confirmed between 1902 and 2010. What this historical review makes clear is that the Ivy League dominance of the Supreme Court is a relatively recent occurrence whose beginnings can be traced to Antonin Scalia’s 1986 confirmation. Prior to that time, although Harvard and Yale were consistently represented among the justices, they did not constitute a majority of sitting members. In addition to this strictly historical assessment of the justices’ education, this Article also attempts to ascertain why the Harvard-Yale trend has arisen and whether this trend may have deleterious effects on the future of the Court. In concluding, the Article recommends that when the next vacancy arises, the president should look outside the confines of Harvard and Yale for a qualified nominee.

Originalism and the IP Clause: A Commentary on Professor Oliar's "New Reading"

In his New Reading article, Professor Oliar set forth a detailed and, in many respects, plausible reconstruction of the Framers’ intent when drafting the Intellectual Property (IP) Clause. But it is a reconstruction predicated on conjecture and supposition in the absence of any historical record actually setting forth such intent. He contends that the Framers’ intent is important because it has been recently highlighted by the U.S. Supreme Court in Eldred v. Ashcroft in the context of interpreting the Clause. This Commentary demonstrates that rather than highlighting the Framers’ intent, the Eldred Court relied almost entirely on original public understanding in interpreting the copyright provision of the Clause. Oliar hypothesizes that there are four open questions of constitutional interpretation involving the Clause that are at least partially amenable to resolution under his analytical reconstruction of the Framers’ intent. For reasons set forth in this Commentary, I am not nearly as sanguine as he is that (1) he has “set the Convention’s IP-related record straight” and that (2) his “findings contribute to resolving” the four questions that he sets forth.

The Welfarist Approach to Human Rights Treaties: A Critique

This Essay provides analysis and some criticism of the argument that international human rights treaties should focus more on development and welfare and less on basic negative rights. It argues that “welfarist” treaties that completely ignore human rights concerns will in theory harm heterogeneous societies with significant minority populations. In focusing only on development goals—for example, economic, health, or education improvement—such treaties might discourage longer-term political or social reform and provide support for governments that do little for minority populations. While the old adage that “a starving person doesn’t care about democracy” remains true, treaties that promote only economic welfare will necessarily do little to alleviate minority persecution and discrimination and may even institutionalize it. The Essay concludes by proposing a compromise: treaties that specifically target minority populations and ask their respective governments to improve the welfare of these socially marginalized groups. Treaties that encourage nations to improve the economic and social welfare of minority or other disenfranchised populations would have the dual effect of improving welfare while focusing on (and requiring the granting of rights to) the poorest and most marginalized groups.

Property and Transitional Justice

Transitional justice is the study of the mechanisms employed by communities, states, and the international community to promote social reconstruction by addressing the legacy of systematic human rights abuses and authoritarianism. The transitional justice literature discussing how states can address past civil and political rights violations through truth commissions and international and domestic prosecutions is well-developed compared to the transitional justice literature concerning the redress of past property rights violations. Nevertheless, history is ripe with examples of states and private actors that have systematically and unjustly taken real property from one group and given it to another. The goal of this Article is to further an important conversation about how transitional states can address these past property rights violations to promote social reconstruction. I discuss the strengths and weaknesses of a state’s three main options: (1) maintaining the present property status quo, (2) fully or partially returning to a prior property status quo, or (3) creating a new property status quo altogether. I argue that a state should decide which option to choose through an inclusive public dialogue in which participants are well-informed rather than through a process involving only elites, which, despite being less time-consuming and less costly, would be inadequate in the long run.

The Death of Twentieth-Century Authority

The case of Bush v. Gore stands out as the seminal decision that decided the disputed presidential election of 2000. For legal researchers, it was a herald of a different sort. With the citation in the per curiam opinion to an online newspaper article, Bush v. Gore fired the first salvo in the death of twentieth-century authority. While courts in the past relied on a select group of print resources, legal researchers today are moving towards a more internet-based research platform. This Article will focus on the shift from traditional print-based authority to a more online and democratic way of using authority to create law. There are still pitfalls in this new world, but the death of traditional authority can be seen with some cautious optimism, because it allows practitioners to choose from a much larger base of authority than what used to be available.

Picturing the Life Course of Procreative Choice

For a substantial part of women’s lives, regulating fertility is a primary project. This Article depicts the life course of women’s procreative choice through a series of complex visual representations of data derived from the National Longitudinal Survey of Youth 1979 and the National Survey of Family Growth 2002. These graphic representations illustrate that preventing procreation, through a variety of choices, including contraception, sterilization, abortion, abstinence, and partner choice, occupies most of a woman’s fertile years, as compared with childbirth.

In Support of a Referendum on the Golan Heights

On December 9, 2009, the Knesset voted to advance legislation requiring that the handover of any land under the administrative and judicial authority of the State of Israel pass a national referendum. The legislation—termed the Golan Heights and Jerusalem Referendum Bill—passed its first reading by a margin of sixty-eight to twenty-two (with one abstention). It now returns to committee for revisions and then must pass second and third readings, in a process that could take months. If the bill becomes law, it is expected to impede Israel from ceding the Golan Heights to Syria in a peace treaty. Israel captured the Golan Heights from Syria in the 1967 Six-Day War and, in 1981, effectively annexed it over objections from the international community. Since then, the Golan Heights has been heavily developed by Israel and now many Israelis regard it as indispensable. For at least a decade, Israeli polls have shown strong popular resistance to a withdrawal from the Golan Heights, with nearly two-thirds of Israeli Jews in opposition.