UCLA Law Review Discourse, Volume 60


Will We Sanction Discrimination?: Can “Heterosexuals Only” Be Among the Signs of Today?

Across the country, we see institutions and businesses advocating for the right not to comply with anti-discrimination mandates on the grounds that doing so violates their religious beliefs. Bucolic inns and bakeries close their doors to same-sex couples, businesses seek to deny their workers insurance coverage for contraception, and religiously affiliated schools fire employees because they are unmarried and pregnant. This Essay puts today’s debate about religious exemptions in historical context and addresses the most common arguments proffered in defense of the religious objector.

Backlash to the Future? From Roe to Perry

Does a judicial decision that vindicates minority rights inevitably give birth to a special kind of backlash, a more virulent reaction than legislation achieving the same result would produce? We examine this question with respect to Roe v. Wade, so often invoked as the paradigmatic case of court-caused backlash, and with the pending marriage cases in mind. As we have shown, conflict over abortion escalated before the Supreme Court ever ruled in Roe, driven by movements struggling over legislative reform and by Republican Party efforts to recruit voters historically aligned with the Democratic Party. These and other features of the abortion conflict suggest that the Court’s decision in Roe was not the abortion conflict’s sole or even its principal cause.

When change through adjudication or legislation threatens the status quo, it can prompt countermobilization and backlash. We do not doubt that adjudication can prompt backlash, but we do doubt that adjudication is distinctively more likely than legislation to prompt backlash or that the abortion conflict illustrates this supposed property of adjudication. Advocates concerned about these questions have to make in-context and on-balance judgments that consider not only the costs but also the benefits of engagement.

Custody Rights of Lesbian and Gay Parents Redux: The Irrelevance of Constitutional Principles

Disputes over custody and visitation can arise when a marriage ends and one parent comes out as gay or lesbian. The heterosexual parent may seek custody or may seek to restrict the activities of the gay or lesbian parent, or the presence of the parent’s same-sex partner, during visitation. A gay or lesbian parent’s assertion of constitutional rights has not been an effective response to such efforts. That is not likely to change. Advocates for gay and lesbian parents have argued forcefully for a nexus text, permitting consideration of a parent’s sexual orientation only when there is evidence of an adverse impact on the child. This Essay argues that the nexus test should be replaced with a rule that disallows consideration of a parent’s nonmarital sexual relationship in custody or visitation disputes. The nexus test implies that a child might be uniquely harmed because a parent is gay or lesbian or because a parent has a new unmarried partner. This implication is inappropriate. A court can evaluate a child’s relationship with a significant person a parent has introduced into the child’s life; that evaluation should not turn on whether that person is a spouse or a nonmarital partner. The court can also examine any decision a parent makes that causes harm to a child. It is misplaced to articulate a distinct test for scrutinizing a parent’s relationship with a nonmarital partner.

Self-Congratulation and Scholarship

Professor Jay Silver’s criticism of the reform proposals put forward in Brian Tamanaha’s book Failing Law Schools displays some characteristic weaknesses of American legal academic culture. These weaknesses include a tendency to make bold assertions about the value of legal scholarship and the effectiveness of law school pedagogy, while at the same time providing no support for these asser-tions beyond a willingness to repeat self-congratulatory platitudes about who professors are and what we do.

The high costs for our students of the current scholarly expectations at American law schools are clear. What is not clear is whether those costs are worth incurring. Simply asserting that they are because the typical publications of American law faculty supposedly provide valuable critiques of the legal system that have a beneficial effect on the system’s operation does not constitute an ar-gument. Likewise, neither do similarly ungrounded assertions that traditional law school pedagogy teaches law students how to think.

The Uncertain Relationship Between Open Data and Accountability: A Response to Yu and Robinson's <em>The New Ambiguity of

By looking at the nature of data that may be disclosed by governments, Harlan Yu and David Robinson provide an analytical framework that evinces the ambiguities underlying the term “open government data.” While agreeing with their core analysis, I contend that the authors ignore the enabling conditions under which transparency may lead to accountability, notably the publicity and political agency conditions. I argue that the authors also overlook the role of participatory mechanisms as an essential element in unlocking the potential for open data to produce better government decisions and policies. Finally, I conduct an empirical analysis of the publicity and political agency conditions in countries that have launched open data efforts, highlighting the challenges associated with open data as a path to accountability.

Framing (In)Equality for Same-Sex Couples

This Essay shows how LGBT rights advocates successfully transformed civil unions and domestic partnerships from a sign of equality into a marker of inequality. The deployment of constitutional frames, and the articulation and resolution of those frames in court, played a significant role in this shift. Constitutional commitments provided the language through which advocates could embrace civil unions and domestic partnerships as ways to provide equality for same-sex couples and yet later reject those designations as badges of inequality. Advocates successfully transformed these nonmarital alternatives from constitutional remedies to constitutional violations. At crucial moments, courts played significant roles in this transition, providing venues for advocates to announce, hone, and resolve competing frames. Advocates, in turn, integrated courts’ treatment of those frames into their discursive strategies. Ultimately, the concepts of equality and inequality and their relationship to same-sex couples gained—and changed—meaning through court-based campaigns. To chart this trajectory, this Essay attends to four crucial judicial decisions along the path from equality to inequality in the framing of civil unions and domestic partnerships: (1) the 1999 Vermont Supreme Court Baker v. State decision, (2) the 2003 Massachusetts Supreme Judicial Court Goodridge v. Department of Public Health decision, (3) the 2005 New Jersey Supreme Court Lewis v. Harris decision, and (4) the 2010 Northern District of California Perry v. Schwarzenegger decision.

Reflections on Sexual Liberty and Equality:

This Essay uses the opportunity to examine Roe v. Wade forty years after it was decided and Lawrence v. Texas ten years after it was decided as a platform from which to analyze the status of the civil rights paradigm in American law. A comparison of the two decisions illustrates an important and new point about how civil rights law is deployed to achieve very different goals.

What civil rights movements and arguments framed under the rubric of equality do best, and a project for which the law is perfectly suited, is ending de jure exclusions and categorical inequalities. The U.S. Supreme Court did precisely that in Lawrence and it may do that again in a marriage case in the near or distant future. What civil rights movements and equality arguments do not do so well is dismantling hierarchies. Roe is importantly different from Lawrence in part because it involved a far messier, more complex set of hierarchies than were present in the challenge to sodomy laws.

The decision in Roe triggered a massive countermobilization by antichoice advocates both inside and outside of the legal system. Claims of reproductive rights now seemingly languish in a political stalemate that has changed little in forty years. By contrast, Lawrence was litigated narrowly, carefully avoiding a challenge to other laws that criminalize consensual adult sexual acts. No conservatives are demanding its reversal, but lower courts have seized on the narrowness of its holding, making it less powerful in challenges to anti LGBT discrimination than was expected when the decision was announced. This Essay adds to the legal literature an explication of these points, and argues that the exclusion-hierarchy distinction provides a partial explanation of why today Lawrence seems a safe precedent, while Roe remains wobbly.

Equality Arguments for Abortion Rights

Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clauses. But in the forty years since Roe, the U.S. Supreme Court has come to understand the abortion right as an equality right, as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, equality arguments have appeared in the opinions of the Court and of the justices. Finally, we explain why there may be independent political significance in grounding abortion rights in equality values.

Human Rights, Labor, and the Prevention of Human Trafficking: A Response to A Labor Paradigm for Human Trafficking

This Essay responds to an article by Hila Shamir previously published in the UCLA Law Review, in which she suggests that human rights has failed as a framework for addressing human trafficking and that instead a labor model would be more successful. Although her article identifies potentially important benefits of a labor perspective, the binary framework it establishes, pitting human rights and labor against each other¬, is counterproductive. Her article mischaracterizes the current antitrafficking framework and undervalues the importance of rights to a robust response to human trafficking. This Essay discusses the value of Professor Shamir’s labor paradigm and the role of human rights in antitrafficking responses. It then suggests that labor–based and human rights–based responses are not mutually exclusive, and that, ultimately, a successful response to human trafficking will need to incorporate strategies and methodologies from a range of perspectives.

On DOMA, Proposition 8, and the Implications of Their Potential Unconstitutionality for Equal Protection and Substantive Due Process Jurisprudence

In her article Marriage This Term: On Liberty and the “New Equal Protection,” Katie Eyer suggests that this term will likely provide a crucial test determine whether due process or equal protection guarantees will be the preferred basis on which minorities will be able to protect themselves from majoritarian discrimination. Assuming that the Court reaches a protective result on the merits in either United States v. Windsor or Hollingsworth v. Perry, however, it seems unlikely that future litigants will know much more than they do now. A robust decision that sexual orientation triggers intermediate scrutiny might be a last hurrah for the recognition of new suspect or quasi-suspect classes or, instead, an invitation for other not-yet-recognized classes to seek to establish that they, too, should be so recognized. What is more likely is that even if the Court strikes down either Proposition 8 or section 3 of the Defense of Marriage Act, the Court will do so on a basis that will provide little or no guidance with respect to which ground is more likely in the future to lead to a positive result.

On the “Considered Analysis” of Collecting DNA Before Conviction

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland’s highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state’s interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too “generalized” to support “a warrantless, suspicionless search.” The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that “given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.” The full Court then granted a writ of certiorari. This essay examines the opinions listed by the Chief Justice and finds their analysis incomplete. I outline the Fourth Amendment questions that a fully considered analysis must answer, identify questionable dicta on the definition of “searches” and “seizures” in the opinions, describe a fundamental disagreement over the analytical framework for evaluating the reasonable warrantless searches or seizures, and criticize a creative compromise in one of the opinions that would allow sample collection without DNA testing before conviction. I conclude that in King, the Supreme Court not only must assess the actual interests implicated by pre-conviction collection and profiling of DNA, but it also should articulate the appropriate framework for evaluating the reasonableness of warrantless searches in general.

Edifying Thoughts of a Patent Watcher: The Nature of DNA

In the pending case Myriad Genetics v. Association for Molecular Pathology, the U.S. Supreme Court will consider the patentability of human genes under the “product of nature” doctrine. Patentable subject matter is generally held to encompass materials and artifacts created by humans, and not that which exists independently in nature. However, it is not clear that this is a meaningful or helpful distinction. Given on one hand that the concept of a gene is a human construct, and on the other hand that all human creations are drawn from the material environment, the question of gene patenting is better addressed as a matter of innovation policy than of imponderable labeling..

Discovery From the Trenches: The Future of Brady

The so-called “due diligence” rule, which excuses prosecutors’ compliance with Brady v. Maryland if the defense could have obtained the exculpatory evidence on its own, is only a symptom of the greater problem ailing the American criminal justice system. The real problem is that prosecutors and defense counsel generally do a terrible job collaborating because of the basic nature of our adversarial system. To make Brady effective, not only must the due diligence rule be reconsidered, but both sides must be willing to cooperate in the truth-seeking mission of criminal trials.

Sweeping Up Guideline Floors: The Misguided Policy of Amendment 767 to the U.S. Sentencing Guidelines Manual

Amendment 767 to the U.S. Sentencing Guidelines Manual (Guide-lines), effective November 1, 2012, significantly modified the calculation of Guidelines ranges for federal defendants convicted of multiple counts where at least one of the counts is subject to a mandatory minimum sentence. The amendment, which altered section 5G1.2 of the Guidelines and its commentary, provides that the minimum statutory sentence for any count in a multicount conviction raises the floor of the Guidelines range for all counts.

The U.S. Sentencing Commission (Commission) set forth two reasons for Amendment 767: to resolve a circuit split and to make it easier for district courts to calculate departures and variances by reducing the likelihood of arriving at multiple Guidelines ranges. The first reason is unsupportable because, as communicated to the Commission in the comments to the proposed amendment, no circuit split actually existed. Moreover, the circuits that had resolved the issue all rejected the position adopted by the amendment. Although the Commission is correct that Amendment 767 will lead to some administrative benefits for district courts by reducing the likelihood that a defendant will have multiple Guidelines ranges, those minimal benefits are strongly outweighed by Amendment 767’s negative consequences.

By linking the Guidelines range to a statutory minimum sentence applicable to a different count of conviction, Amendment 767 divorces the punishment determination from the underlying conviction. Such decoupling is counter to both the moral underpinnings of sentencing—an offender’s punishment should not exceed her just deserts—and the statutory directive that district courts should impose a sentence that is no greater than necessary to achieve the goals of sentencing and fix a just punishment. Furthermore, Amendment 767 places additional administrative burdens on the criminal justice system by increasing the need to resentence defendants upon the vacation of a single count of conviction and by incentivizing prisoners to challenge more sentences and convictions through habeas petitions. Therefore, the changes wrought by Amendment 767 are not good sentencing policy and district courts would be well advised to vary from Guidelines ranges calculated through amended section 5G1.2.

The Case Against Tamanaha’s Motel 6 Model of Legal Education

The radical overhaul of legal education espoused in Professor Brian Tamanaha’s new, widely read book Failing Law Schools would represent a disastrous step backward in legal education. Tamanaha and his supporters argue that the current crisis in legal education—rampant unemployment among debt-laden law graduates and plummeting law-school applications—requires a dramatic reduction in law-school tuition by substituting a yearlong apprenticeship for the final year of law study and replacing tenured, full-time legal scholars in the classroom with low-cost, part-time practitioners at non-elite law schools.

This Essay examines Tamanaha’s model in light of the pedagogical needs of law students, the interests of the clients of fledgling attorneys, and the role law professors have traditionally played in championing legal reform and the rights of the disenfranchised through enlightened scholarship. Who will replace the law professor—protected by tenure, unbound to clients or special interests, and able to reflect on abuses of power from the Archimedean point of the academy—as the critics of injustice? I contend that Tamanaha’s argument for apprenticeships disserves clients and is pedagogically unsound. And that Tamanaha’s “differentiated” legal education, with elite, three-year programs training corporate lawyers and less expensive two-year schools for local practitioners, would limit the choices and opportunities of law students from the start.