UCLA Law Review Volume 61, Issue 4

Expressive Enforcement

Laws send messages, some of which may be heard at the moment of enactment. But much of a law’s expressive impact is bound up in its enforcement. Although scholars have extensively debated the wisdom of expressive legislation, their discussions in the context of domestic criminal law have focused largely on enactment-related messaging, rather than on expressive enforcement. This Article uses hate crime laws—the paradigmatic example of expressive legislation—as a case study to challenge conventional understandings of the messaging function of lawmaking. The Article asks: How do institutional incentives shape prosecutors’ enforcement decisions, and how do these decisions affect the message of hate crime laws?

To answer that question, the Article presents original data from the first multistate qualitative empirical study of hate crime prosecution. The findings help to explain a paradox: In archetypal hate crime cases involving animus directed at a victim’s core identity features—such as race or sexual orientation—prosecutors may decline to include hate crime charges because of statutory incentives, difficulty of proving motive, and concerns about jury reaction. Conversely, hate crime enforcement may be appealing to prosecutors in precisely those cases that are least likely to further the expressive purposes of hate crime laws. After exploring this mismatch, the Article identifies some areas where there may be irreconcilable tensions between the expressive goals of legislators and the incentives of prosecutors and, in other areas, offers recommendations to align legislative goals with enforcement practices.

Insider Trading as Private Corruption

Deep confusion reigns over federal insider trading law, even over the essential elements of an insider trading violation. On the one hand, this uncertainty seems to have encouraged the Securities and Exchange Commission (SEC) and some lower courts to push the boundaries well beyond the limits previously established by the U.S. Supreme Court. On the other hand, influential academics continue to express normative skepticism as to why there is even a ban on insider trading at all. Without a satisfying theory of what constitutes insider trading and why it is wrong, doctrinal development in the lower courts has reached a crisis, with the economic stakes only getting higher. This Article offers a new theory of insider trading law. It maintains that insider trading is a form of private corruption, defined as “the use of an entrusted position for self-regarding gain.” The corruption theory not only provides answers to the normative skeptics but, as compared to the two leading alternatives, the property theory and the unjust enrichment theory, more closely aligns with the core features of the received insider trading doctrine. And, on careful analysis, the corruption theory reveals an implicit and previously unappreciated coherence to the doctrine. Finally, the corruption theory provides relatively concrete guidance in hard cases, which is the sort of pragmatic theory that the SEC and the courts desperately need.

Marriage Equality and Postracialism

When California’s Proposition 8 (Prop. 8) eliminated the right to marry a person of the same sex, it aggravated a fissure between the black community and the gay community. Though Prop. 8 had nothing to do with race on the surface, the controversy that followed its passage was charged with racial blame. This Article uses the Prop. 8 controversy, including the ensuing Perry litigation challenging the law, as a window into relations between the black and gay communities. Although the marriage equality movement bills itself as a descendant of the black civil rights movement, it often treats its forefather as dead: The political rhetoric and legal arguments of the gay rights movement routinely embrace postracialism, the notion that American society has moved beyond racial difference and hierarchy. Such arguments imply that the struggle for racial justice is over, with gays supplanting blacks as the paradigmatic stigmatized minority. In the words of The Advocate, a leading Lesbian Gay Bisexual Transgender (LGBT) periodical, “Gay Is the New Black.”

This is the first Article to identify the postracial narratives at the heart of marriage equality argumentation—in the media, on the streets, and in the courts. I show that such claims reflect an oppression Olympics, undermine black-gay relations, and are not dictated by constitutional precedent. Moreover, such claims may inadvertently constrict equality for both groups, marking the end of civil rights for both the black and LGBT communities. I urge the marriage equality movement to attend to race carefully, taking account of the history of the Supreme Court’s application of strict scrutiny to race and the ongoing subordination afflicting the black community decades after securing formal equality. This analysis casts doubt on whether the LGBT community should aspire to be “the new black.” Attending to the trajectory of black claims for civil rights could lead marriage equality advocates to create doctrinal space for remedial efforts necessary to transform formal equality into equality in fact.

Fast and Furious, or Slow and Steady? The Flow of Guns From the United States to Mexico

This empirical legal study examines Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) trace data from crime guns seized in Mexico and traced back to their states of origin in the United States. It uses Ordinary Least Squares (OLS) regression to analyze the relationship between U.S. states’ crime gun export rates to Mexico and state gun control laws. The presence of four state gun control laws—(1) limiting multiple sales, (2) requiring background checks for secondary transfers, (3) prosecuting straw purchasers, and (4) restricting the sale of assault weapons—significantly reduces a state’s export rate of crime guns to Mexico as compared to states that have none of these laws in place. This relationship persists and is significant even when controlling for the state’s distance from the border with Mexico.

Parole Denial Habeas Corpus Petitions: Why the California Supreme Court Needs to Provide More Clarity on the Scope of Judicial Review

The California Penal Code makes clear that parole is supposed to be the norm, not the exception, for inmates sentenced to life in prison. But these inmates, convicted for murder, rape, and kidnapping and commonly known as lifers, never had greater than a 7 percent estimated likelihood of release from 1991 to 2010. California is unique in that if the Board of Parole Hearings (BPH) approves parole, then the governor has the power to reverse the decision and deny parole. A combination of a low BPH grant rate and an inconsistent-but-often-high governor reversal rate has contributed to a low likelihood of parole for lifers in California. When lifers appeal a parole denial to the state courts, they face the difficult hurdle of the highly deferential some evidence standard.

Until the California Supreme Court decided In re Lawrence in 2008, many lower courts found that the BPH’s or governor’s denials of parole met the some evidence standard simply because the inmate’s murder was heinous. Lawrence set a higher bar, requiring these executive branch entities to provide evidence that the inmate was currently dangerous. It also seemed to advance a less deferential model and give courts more leeway in scrutinizing the evidence relied on by the BPH and governor. But another California Supreme Court case in 2012, In re Shaputis (Shaputis II), appeared to retract from that model and adopt a more deferential model.

Without further clarification, lower courts struggle to apply the some evidence standard consistently. A brief empirical review of California appellate court decisions reveals that over one-third of these decisions continue to apply the less deferential model, despite Shaputis II. Because this inconsistent application of the some evidence standard deprives lifers of due process in a recognized constitutional liberty interest, the California Supreme Court must choose between the two models. To ensure due process for lifers and maintain a proper checks and balances system, the court should adopt the less deferential model.