UCLA Law Review Volume 60, Issue 1

Not This Child: Constitutional Questions in Regulating Noninvasive Prenatal Genetic Diagnosis and Selective Abortion

Recent developments in abortion politics and prenatal genetic testing are currently on a collision course that has the potential to change the way we think about reproduction and reproductive rights. In the fall of 2011, the first noninvasive prenatal genetic test for Down syndrome entered the commercial market, offering highly accurate prenatal genetic tests from a sample of a pregnant woman’s blood without posing a risk to the fetus or the mother. In the last five years, over fifty biotechnology start-ups have been created to offer noninvasive prenatal diagnosis (NIPD) for an ever-widening range of genetic and chromosomal conditions. Because of its noninvasive nature, relatively low cost, and early timing, NIPD has the potential to become standard prenatal care for all pregnant women, providing them information on hundreds of genetic and chromosomal characteristics of their prospective offspring soon after they discover the pregnancy. Moreover, the technological development of NIPD has occurred alongside a significant political development: A handful of states have passed or attempted to pass legislation that restricts abortion based on the reasons for which it was sought. These laws have mainly prohibited abortions sought for sex- or race-based reasons, but proposed legislation would also restrict abortions sought for a wider range of genetic conditions.

The collision of these political and technological developments raises two questions regarding reproductive autonomy: (1) whether the Fourteenth Amendment protects a woman’s right to abort a fetus for any reason; and (2) whether that protection includes the right to access genetic tests that could inform the abortion decision. This Article argues for the reaffirmation of a woman’s right to choose to abort for any reason and grounds that right in strong principles of liberty and autonomy, rather than sex equality. In the context of reproductive genetic testing, the Article identifies a legitimate state interest, previously unrecognized in abortion jurisprudence, in avoiding significant harm to society based on widespread discriminatory selective abortion. The Article then proposes a new framework for examining the regulation of reproductive genetic testing that balances the relevant state and individual interests in a novel manner.

A Labor Paradigm for Human Trafficking

Although human trafficking has gained unprecedented national and international attention and condemnation over the past decade, the legal instruments developed to combat this phenomenon have thus far proved insufficient. In particular, current efforts help an alarmingly small number of individuals out of the multitudes currently understood as falling under the category of trafficked persons, and even in these few cases, the assistance provided is of questionable value. This Article thus calls for a paradigm shift in anti-trafficking policy: a move away from the currently predominant human rights approach to trafficking and the adoption of a labor approach that targets the structure of labor markets prone to severely exploitative labor practices. This labor paradigm, the Article contends, offers more effective strategies for combating trafficking.

After establishing the case for the labor paradigm, the Article suggests how it can be incorporated into existing anti-trafficking regimes. The Article proposes five measures for implementing anti-trafficking policies grounded on the labor approach: prevent the criminalization and deportation of workers who report exploitation; eliminate binding arrangements; reduce recruitment fees and the power of middlemen; guarantee the right to unionize; and extend and enforce the application of labor and employment laws to vulnerable workers. Finally, the Article analyzes why this paradigm has yet to be adopted and responds to some of the main objections to a paradigm shift.

Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule

This Article is the first to examine the routine—but problematic—practice of courts forgiving prosecutors for failing to disclose Brady evidence if the defendant or his lawyer knew or with due diligence could have known about the evidence. This Article begins by explaining the insidious emergence of the “due diligence” rule and catalogs how courts have defined, justified, and applied the rule since Brady v. Maryland. It argues that while the rule is not without intuitive appeal, its burden-shifting framework is troubling and suspect. The defendant due diligence rule is directly contrary to the due process and truth-seeking principles fundamental to Brady, and it ignores basic realities of adversarial criminal practice. This Article exposes and refutes several misperceptions upon which the rule rests: (1) that prosecutors can always accurately evaluate what evidence is sufficiently available through due diligence so as to justify nondisclosure; (2) that the exculpatory facts contained in a record, and in theory available to the defense, are always equal in evidentiary value to the record itself; (3) that defendants can always accurately identify legally relevant facts in their cases and can communicate effectively with their lawyers; (4) that defense lawyers have the same resources as prosecutors and, therefore, have the same ability to conduct diligent investigations; and (5) that any problems with the defendant due diligence rule can be addressed in postconviction proceedings through claims of ineffective assistance of counsel. This Article concludes by calling for elimination of the rule and the restoration of Brady’s intended framework.

Trade Dress Protection for Cuisine: Monetizing Creativity in a Low-IP Industry

Cuisine exists in intellectual property law’s “negative space”: It is relatively unprotected by formal intellectual property (IP) laws, yet creativity and innovation flourish. This runs contrary to the given economic wisdom that propertization is required to incentivize creation. Community norms and the first-mover advantage help to explain how cuisine thrives in this low-IP equilibrium. However, such norms are relatively fragile, and recent cases and discussions have shown that as the restaurant industry grows, these community norms may fail to protect creative chefs adequately. This will likely lead chefs and restaurateurs to push for an expansion of existing law to replace or replicate those norms.

Commentators in the legal community and the culinary world have debated the merits of expanding IP law to cover restaurant dishes. Most have focused on copyright and, to a lesser extent, patent law. This Comment is the first to explore in depth how trade dress law, a subset of trademark law, presents another possibility for protecting restaurant dishes. I argue that a small expansion of trade dress to cover the plating of restaurant dishes is an ideal way to codify existing norms in the restaurant industry and to maintain an industry-appropriate level of IP protection.

Ultimately, I conclude that protections built into the trademark system will adequately address many of the fears about increased IP protection in the restaurant industry, and I suggest that a small increase in formal protection for this traditionally low-IP industry is worth the risk, because it is likely to spur a higher quality of creative production and may increase chefs’ ability to monetize their creativity.

What Happens in the Jury Room Stays in the Jury Room . . . but Should It?: A Conflict Between the Sixth Amendment and Federal Rule of Evidence 606(b)

The Sixth Amendment to the U.S. Constitution guarantees all criminal defendants the right to trial by an impartial jury—a jury that is free of bias and that decides the case solely on the evidence before it. If even one juror is biased or prejudiced, the defendant is denied this fundamental right.

Federal Rule of Evidence 606(b) generally prohibits jurors from testifying as to what occurred during deliberations, subject to certain exceptions that do not explicitly encompass the presence of a biased or prejudiced juror. But what happens when one juror voluntarily comes forward after a verdict claiming that another juror was biased or prejudiced? In such a situation, the Rule’s prohibition of juror testimony conflicts with the defendant’s constitutional right to trial by an impartial jury.

Some courts have held juror testimony of another juror’s bias or prejudice to be admissible under an exception to Rule 606(b), while others have found this testimony inadmissible under the Rule’s general prohibition. Still other courts have held that even if such testimony is inadmissible under the Rule’s general prohibition, the Sixth Amendment right to an impartial jury requires the testimony’s admittance.

This Comment contends that courts should admit such testimony. First, certain aspects of the trial process that are meant to protect a defendant’s right to an impartial jury are not effective in the context of juror bias or prejudice. Second, psychological research has shown that it is very difficult to ascertain a person’s bias or prejudice because people are often unaware of their biases or, if they are aware, are unwilling to reveal them.

This Comment also argues that the Rule should not bar admitting this type of testimony. First, testimony of another juror’s bias or prejudice falls under an exception to the Rule. Second, admitting such evidence would not impede the policies underlying the Rule. Finally irrespective of whether this evidence is found to be admissible or inadmissible under the Rule, the Sixth Amendment requires that such testimony be admitted.