UCLA Law Review Discourse, Volume 59


Another Heller Conundrum: Is It a Fourth Amendment “Exigent Circumstance” to Keep a Legal Firearm in Your Home?

In Heller and McDonald, the Supreme Court recognized an individual’s constitutional right to possess a firearm in his home. This leads to an interesting question—doesn’t that right conflict with the common practice of police forcibly entering a home, without knocking and announcing their presence, when a reasonable suspicion exists that the occupant is armed? In other words, if one has a Second Amendment right to keep a gun in the home, should that limit one’s Fourth Amendment right to a knock on the door before police enter? This Article considers the question and offers courts a framework for future decisions.

Defusing Implicit Bias

The February 2012 killing of Trayvon Martin has slowly reignited the national conversation about race and violence. Despite the sheer volume of debate arising from this tragedy, insuffi cient attention has been paid to the potentially deadly mix of guns and implicit bias. Evidence of implicit bias, and its power to alter real-world behavior, is stronger now than ever. A growing body of research on “shooter bias” reveals that, as a result of implicit bias, White and Black Americans are more likely to shoot unarmed Black men than unarmed White men. The problem has been diagnosed. What remains to be determined is the solution. While defusing implicit bias is a daunting task, the stakes are too high to ignore the problem. States, responsible for laws regulating gun ownership and use, must help defuse implicit bias before it becomes deadly.

The New Ambiguity of “Open Government”

“Open government” used to carry a hard political edge: It referred to politically sensitive disclosures of government information. The phrase was first used in the 1950s in the debates leading up to passage of the Freedom of Information Act. But over the last few years, that traditional meaning has blurred, and has shifted toward open technology.

Open technologies involve sharing data over the internet, and all kinds of governments can use them, for all kinds of reasons. Recent public policies have stretched the label “open government” to reach any public sector use of these technologies. Thus, the term “open government data” might refer to data that makes the government as a whole more open (that is, more publicly accountable), or instead might refer to politically neutral public sector disclosures that are easy to reuse, even if they have nothing to do with public accountability. Today, a regime can call itself “open” if it builds the right kind of website—even if it does not become more accountable or transparent. This shift in vocabulary makes it harder for policymakers and activists to articulate clear priorities and make cogent demands.

This Essay proposes a more useful way for participants on all sides to frame the debate: We separate the politics of open government from the technologies of open data. Technology can make public information more adaptable, empowering third parties to contribute in exciting new ways across many aspects of civic life. But technological enhancements alone will not resolve debates about the best priorities for civic life, and enhancements to government services are no substitute for public accountability.

The Pseudo-Elimination of Best Mode: Worst Possible Choice?

Even as it is hailed as the most significant legislative change to patent law in a half-century, some of the changes the U.S. Congress made in the Leahy-Smith America Invents Act are surprisingly equivocal. One provision captures this aspect of the Act particularly well: the pseudo-elimination of the best mode requirement. In this Essay, we develop the concern that by equivocating on the best mode requirement, Congress may have failed to achieve the goal of leveling the playing field between U.S. and foreign applicants. In fact, Congress may have tilted the playing field from uneven in one direction, if it ever was uneven, to uneven in the other.

To Show Virtue Her Own Feature

Each year, the UCLA School of Law presents the Rutter Award for Excellence in Teaching to an outstanding law professor. On April 3, 2012, this honor was given to Professor Pavel Wonsowicz. UCLA Law Review Discourse is proud to continue its tradition of publishing a modified version of the ceremony speech delivered by the award recipient.

Lies, Honor, and the Government’s Good Name: Seditious Libel and the Stolen Valor Act

Later this term the Supreme Court will decide the constitutionality of the Stolen Valor Act, which punishes anyone who falsely represents themselves to have been awarded certain military medals. Although the Court declared the crime of seditious libel inconsistent with the First Amendment long ago, the Act revives something very like that crime. The connection between the two crimes is not immediately obvious but the government’s underlying reasoning is nearly identical in both. Officials justified seditious libel prosecutions by claiming, without proof, that criticism of the government undermined its authority and reduced the public’s respect for it, ultimately threatening national security. Contemporary government officials argue, without proof, that the Act is necessary because lies dilute the “prestige and honor” of military medals, undermining the reputations of those who receive them and military readiness.

The Court’s rejection of seditious libel suggests that the Stolen Valor Act is similarly unconstitutional. The Court’s low value speech jurisprudence, which was at the core of lower court disputes over the Act, evolved in response to the government’s pursuit of seditious libel prosecutions. That jurisprudence requires a tight causal nexus between speech and harm, which is completely lacking in the government’s justification of the Stolen Valor Act. The Court has also rejected the government’s interest in protecting it’s own “honor” or “dignity”, the core interest the Act seeks to protect. Laws based in such interests compel respect for government and establish government orthodoxy, which is inconsistent with the Court’s jurisprudence.

Tinkering With the Machinery of Life

Recent adjustments by the Environmental Protection Agency (EPA) and the Department of Transportation (DOT) to their cost–benefit analysis procedures could cause tremendous changes to federal regulation. For decades, federal agencies have calculated the value of a statistical life (VSL) and have used that number when evaluating the costs and benefits of proposed regulations. If a regulation was expected to save lives, the number of lives saved could be multiplied by the VSL to monetize the benefits. Because, however, lives saved in the future were given the same nominal value as lives saved in the present, the real value of future lives was substantially eroded by discounting to present value, generally at annual rates of 3 and 7 percent. In other words, if a life saved today is worth $8 million, a life saved in ten or twenty years would be worth far less. A discount rate of 7 percent erodes half the value of a life expected to be saved in 2022 and three-quarters of one expected to be saved in 2032. This process hinders the regulation of slow-acting perils, such as workplace carcinogens and global climate change.

Now the EPA and the DOT have begun inflating VSLs when calculating the benefits of regulations. Before subjecting lifesaving benefits to the same discounting applied to other costs and benefits, the agencies adjust the values upward to reflect the expected higher income (and associated willingness to pay to avoid risks of harm) enjoyed by future persons. This seemingly minor procedural change can radically alter the expected benefits of major regulations, and the regulated community will likely oppose the agencies’ efforts to more accurately calculate future benefits. Observers of federal regulation should track this battle carefully and contact other federal agencies as they decide whether to adopt the “VSL inflation” procedure.

Putting Down: Expressive Subordination and Equal Protection

William M. Carter, Jr., divides race-conscious policies into those that concretely disadvantage minorities and those that do not subordinate them at all, but merely express the policymaker’s race-consciousness. The main aim of this Article is to introduce a third category that his dichotomy excludes: race-conscious policies that amount to expressive subordination. To subordinate people expressively is to treat them as inferior, even when doing so imposes no concrete disadvantage. For example, state action that targets racial minorities in an insulting way (such as granting them free assimilation programs or directing police to discreetly check their license plates) constitutes expressive subordination, regardless of what further harm it inflicts. And, I argue, strict equal protection scrutiny is no less appropriate for such policies than for more concrete forms of racial subordination.

Professionalism and Matthew Shardlake

This Essay/Book Review examines the Matthew Shardlake series by C.J. Sansom. In particular, it examines the question of whether the sixteenth-century fictional lawyer Shardlake can serve as a role model for twenty-first-century lawyers, both in terms of his ethics and his professionalism. An examination of the Shardlake series as a whole yields some uncertain answers, both as to Shardlake and as to what it means to be an ethical and professional lawyer. This is ultimately part of what makes the series so enjoyable for lawyers.

Heaven: What Sense Can It Make to Say That Something Is Absolutely Wrong?

Democratic legal systems and international human rights norms hold generally that torture can never be justified, however urgent the need. Many, but not all, thinkers about morality agree with this consensus. But the certainty breaks down in the face of catastrophic, “ticking bomb” hypotheticals, and lawyers and moralists retreat to arguments about the unreality of such hypotheticals and about the uncertainty as to whether torture is sufficiently likely to work to justify its use—all of which concedes that in principle torture is not always wrong. This Essay argues that it is always wrong—period. It then locates such an argument in a general moral landscape, showing how that and some other such absolutes are not as fanatic as they are made to appear. Rather, this argument is connected to a system of other moral concepts and commitments that we would be loath to unravel and does not depend on some supernatural guaranty that moral behavior will always have a happy outcome—in this world or the next: hence the title.

Transcendence: Conservative Wealth and Intergenerational Succession

This Article investigates a hitherto unexplored connection between money and politics. It posits a psychological explanation for why certain extremely wealthy and powerful tycoons back ultraconservative causes and oppose social spending, even on education, though these measures would benefit the economy as a whole. Employing the concept of transcendence, it shows how wealthy parents are often disappointed in their offspring’s free-spending ways and weak work ethic. Unconsciously seeking to assure continuity after they are gone, the elderly rich shift focus to assure that their class, at least, will continue to rule after their own demise.

Applying Rules of Discovery to Information Uncovered About Jurors

Once reserved for high profile cases or clients with “deep pockets,” juror investigations have become increasingly common in the digital age. With a couple of keystrokes, attorneys can now uncover a wealth of information about jurors online. This Article examines the positive impact of technology on juror investigations in criminal trials, such as improving the use of peremptory challenges, creating more effective voir dire questioning, and ultimately leading to excluding unqualified or rogue jurors. However beneficial the use of technology may be, it also comes with some negatives. By turning to the rules of discovery, this Article provides a unique solution to help balance the pros and cons of investigating jurors.

Footloose: How to Tame the Tucker Act Shuffle After United States v. Tohono O’odham Nation

The purpose of 28 U.S.C. § 1500, “Pendency of claims in other courts,” is to force upon plaintiffs suing the federal government a mutually exclusive election between either the U.S. Court of Federal Claims (CFC) or other courts, so as to minimize jurisdictional conflict and to preclude duplicative claims. Under current precedent, the statute strips the CFC of jurisdiction if the claim before the CFC arose from substantially the same operative facts as any earlier-filed claim pending in another court. Recently, in United States v. Tohono O’odham Nation, the U.S. Supreme Court clarified that § 1500 applies even when the two claims seek different relief. Going forward, this Article argues that the CFC should distinguish between the two primary classes of plaintiffs engaged in duplicative litigation before it: (1) “Bowen v. Massachusetts claimants” who elect to pursue both money damages in the CFC and specific relief that happens to be monetary in district court; and (2) regulatory takings plaintiffs who must file initial Administrative Procedure Act claims in district court to challenge adverse agency action. Section 1500 should not bar the latter class of plaintiffs, whose claims are “necessarily sequential” to preserve a “substantial legal right” and therefore are better suited for stay and abeyance. More broadly, Congress should amend the statute to extend stay and abeyance to duplicative Bowen claims before the CFC pending their disposition in the other courts. Modern preclusion doctrine would apply to the stayed claims. Finally, Congress, or the Supreme Court upon hearing a suitable case, should eliminate a judicially created order-of-filing loophole, which allows a plaintiff to bypass § 1500 merely by filing in the CFC first.