Digital Commons Network^™

Wrong About The Right: How Courts Undermine The Fair Cross-Section Guarantee By Confusing It With Equal Protection, Nina W. Chernoff

UC Law Journal

This Article exposes a surprising doctrinal distortion that has unfolded since the Supreme Court first established the Sixth Amendment standard for the right to a jury selected from a fair cross-section of the community. A significant number of courts are erroneously applying the test for a violation of the Fourteenth Amendment’s equal protection guarantee to Sixth Amendment claims. As a result, criminal defendants are being deprived of the unique Sixth Amendment fair cross-section right, which encompasses more than just protection from discrimination. Under the Sixth Amendment, a defendant need not allege that any state actor discriminated in the jury selection …

The Expressive Cost Of Corporate Immunity, Gregory M. Gilchrist

UC Law Journal

Is it possible to justify imposing criminal liability on corporations? Two basic aspects of criminal law have no application to corporations: Corporations cannot be jailed and they cannot form mental states. Moreover, there is reason to think that much of the deterrent effect generated by corporate criminal liability could be generated more efficiently by civil liability. Still, the demand for criminal prosecution of corporations remains high. This Article seeks to understand why we have corporate criminal liability, and it concludes that expressivism is necessary to justify the practice. Expressivism justifies punishment by reference to the benefits of a statement of …

The Expressive Cost Of Corporate Immunity, Gregory M. Gilchrist

UC Law Journal

Is it possible to justify imposing criminal liability on corporations? Two basic aspects of criminal law have no application to corporations: Corporations cannot be jailed and they cannot form mental states. Moreover, there is reason to think that much of the deterrent effect generated by corporate criminal liability could be generated more efficiently by civil liability. Still, the demand for criminal prosecution of corporations remains high. This Article seeks to understand why we have corporate criminal liability, and it concludes that expressivism is necessary to justify the practice. Expressivism justifies punishment by reference to the benefits of a statement of …

Wrong About The Right: How Courts Undermine The Fair Cross-Section Guarantee By Confusing It With Equal Protection, Nina W. Chernoff

UC Law Journal

This Article exposes a surprising doctrinal distortion that has unfolded since the Supreme Court first established the Sixth Amendment standard for the right to a jury selected from a fair cross-section of the community. A significant number of courts are erroneously applying the test for a violation of the Fourteenth Amendment’s equal protection guarantee to Sixth Amendment claims. As a result, criminal defendants are being deprived of the unique Sixth Amendment fair cross-section right, which encompasses more than just protection from discrimination. Under the Sixth Amendment, a defendant need not allege that any state actor discriminated in the jury selection …

Sixth Place: The State Of Florida V. Joelis Jardines, Cassandra Kerkhoff, Jodie Smith

David E. Snodgrass Moot Court Competition

No abstract provided.

Fourth Place: The State Of Florida V. Joelis Jardines, Brian Scherman, Josiah Houck

David E. Snodgrass Moot Court Competition

No abstract provided.

Poor Women And The Protective State, Khiara M. Bridges

UC Law Journal

This Article puts poor, pregnant women’s current experience with the state into conversation with the science of prenatal and early childhood brain development and looks at the effect on women’s autonomy of government regulation of individual behaviors that may harm fetal brain development. Drawing upon ethnographic fieldwork with poor, pregnant women that reveals that indigent women’s current experience with the regulatory state is one in which their autonomy is already grossly compromised, this Article argues that the infringement on vulnerable populations’ privacy rights is guaranteed should the government attempt to manage or reduce assaults on prenatal brain development through the …

Note – The Government Can Read Your Mind: Can The Constitution Stop It?, Mara Boundy

UC Law Journal

Functional Magnetic Resonance Imaging (“fMRI”) technology produces a four-dimensional map of brain activity, such as perception, memory, emotion, and movement. fMRI scans track the flow of blood to the various regions of the brain in real time and reveal the subject’s response to particular stimulus. For example, an fMRI scan might reveal blood flow to a subject’s memory center in response to a picture of the house in which she was raised. On the one hand, this technology seems to produce a model of a physical attribute and offer insight into the workings of the human brain. On the other, …

Developmental Neuroscience, Children’S Relationships With Primary Caregivers, And Child Protection Policy Reform, Lois A. Weithorn

UC Law Journal

Empirical research has confirmed that the harms of child maltreatment can affect almost every area of an individual’s functioning and can reverberate across relationships, generations, and communities. Most recently, investigators at the U.S. Centers for Disease Control have called for policymakers to prioritize prevention and amelioration of child maltreatment in a manner consistent with its approach to other major public health problems.This Article—an outgrowth of a panel on Relationships with Caregivers and Children’s Neurobiological Development, which took place at a recent symposium, Law and Policy of the Developing Brain, co-sponsored by the University of California’s Hastings College of the Law …

Creating A Clearinghouse To Evaluate Environmental Risks To Fetal Development, Kate E. Bloch

UC Law Journal

In this Article, the Author explores current challenges to accessing and evaluating information about environmental risks to fetal development. She investigates these challenges within the context of the existing regulatory framework for environmental risks. As a result of this analysis, she highlights the need for and proposes creating an independent non-profit umbrella organization—a clearinghouse—to collect, distill, interpret, and make accessible the research on environmental threats to fetal development and to apply that research to evaluating relevant U.S. policy. The Author defines broadly the research on fetal development that lies within the charge of the clearinghouse to include not only research …

A Tale Of Three Families: Historical Households, Earned Belonging, And Natural Connections, Allison Anna Tait

UC Law Journal

Cases targeting family regulation in the 1970s turned, for the first time, on three contrasting and sometimes competing theories of the family: historical households, earned belonging, and natural connections. This Article introduces and defines these three theories and offers a descriptive account of how the theories were used by litigants and the Supreme Court alike to measure discrimination, evaluate the rights of individual family members, and, often, increase household equality. The theory of historical households, developed with great success by Ruth Bader Ginsburg, invoked a Blackstonian family defined by gender hierarchy and the law of coverture, and posited that this …

The Evolution Of Unconstitutionality In Sex Offender Registration Laws, Catherine L. Carpenter, Amy E. Beverlin

UC Law Journal

More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary. This Article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this Article posits that, even if sex offender registration schemes initially were constitutional, serially amended sex offender registration schemes—what this Article dubs super-registration schemes—are not. Their emergence demands reexamination of the traditionally held assumptions that defined original registration laws as civil regulations. Two intertwined causes …

Board Of Directors Open Meeting Agenda 03/02/2012, Uc Hastings Board Of Directors

2012 Board of Directors Agenda and Materials

No abstract provided.

Note – Exposing Misconduct: Fixing The California Supreme Court’S Limitation Of Post-Conviction Discovery, Jasmine Berndt

UC Law Journal

Following the Los Angeles Rampart Scandal, a concerned California legislature created post-conviction procedures intended to help wrongfully convicted people challenge convictions resulting from government misconduct. One of these mechanisms was California Penal Code section 1054.9, which allowed defendantpetitioners attacking sentences of death or life without parole to discover evidence to which they would have been entitled at trial upon a minimal showing. After years of broadly interpreting the statute, the California Supreme Court reversed direction with its decision in Barnett v. Superior Court, where it created a new hurdle for those seeking discovery: Defendant-petitioners must now show a reasonable basis …

Marijuana. Regulation And Taxation Of Medical Use Industry. Reduced Criminal Penalties. Initiative Statute.

Initiatives

Establishes new government agency to regulate medical marijuana cultivation, manufacture, distribution, testing, and sale. Imposes agency fees, and 2.5% tax on medical marijuana retail sales. Allocates new revenues to agency administration, any remainder primarily to medical marijuana research and grants. Preempts local regulation of medical marijuana, except for zoning of medical marijuana dispensaries. Requires one dispensary per 50,000 residents unless limited or banned by local initiative. Bars state and local assistance to federal enforcement against medical marijuana. Reduces criminal penalties for marijuana possession, cultivation, transport, or sale.Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on …

Undocumented Immigrants. Requires State Law Enforcement Officers To Enforce Federal Immigration Law. Denies Driver's Licenses To Undocumented Immigrants. Initiative Statute.

Initiatives

Requires state and local1aw enforcement to comply with direction from federal immigration authorities for holding and transferring undocumented immigrants arrested by law enforcement officials. Requires commitment for law enforcement agencies to perform federal immigration functions. Denies driver's licenses to undocumented immigrants. Prohibits law enforcement from justifying arrests solely because an individual over fifteen was driving without a licenseSummary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Increased state and local law enforcement costs, potentially reaching several millions of dollars annually, for detaining persons suspected of being unlawfully present in the U.S. …

Unlawful Arrests And Over-Detention Of America's Immigrants: What The Federal Government Can Do To Eliminate State And Local Abuse Of Immigration Detainers, Molly F. Franck

UC Law Journal of Race and Economic Justice

Ever since Arizona governor, Janice Brewer, signed S.B. 1070 into law in early 2010, national debates over immigration have dominated the public discourse, and precipitated a tidal wave of state legislative proposals to give states authority to regulate immigration. At the same time, however, many state and local police departments assist Immigration and Customs Enforcement ("ICE") with enforcing federal immigration law by means of 287(g) Agreements, the Secure Communities program, and immigration detainers. An immigration detainer, often referred to as an ICE detainer or ICE hold, authorizes state and local police to keep an arrestee for up to forty-eight hours …

Resistance And Repression: The Black Guerrilla Family In Context, Azadeh Zohrabi

UC Law Journal of Race and Economic Justice

The California Department of Corrections and Rehabilitation ("CDCR") considers prison gangs to be serious threats to prison safety and security and has developed a "gang validation" system to identify suspected prison gang members and their associates. The CDCR administratively segregates these prisoners from the general population by use of harsh, highly restrictive secure housing units ("SHUs"). The CDCR's gang validation process is currently applied to the Black Guerrilla Family ("BGF"), the only Black prison gang recognized by the CDCR.

This note will engage in a historical examination of the political movement that gave rise to the BGF and the life …

Death Penalty.

Propositions

Repeals death penalty and replaces it with life imprisonment without possibility of parole. Applies retroactively to existing death sentences. Directs $100 million to law enforcement agencies for investigations of homicide and rape cases. Fiscal Impact: Ongoing state and county criminal justice savings of about $130 million annually within a few years, which could vary by tens of millions of dollars. One-time state costs of $100 million for local law enforcement grants.

Human Trafficking. Penalties.

Propositions

Increases prison sentences and fines for human trafficking convictions. Requires convicted human traffickers to register as sex offenders. Requires registered sex offenders to disclose Internet activities and identities. Fiscal Impact: Costs of a few million dollars annually to state and local governments for addressing human trafficking offenses. Potential increased annual fine revenue of a similar amount, dedicated primarily for human trafficking victims.

Three Strikes Law. Repeat Felony Offenders. Penalties.

Propositions

Revises law to impose life sentence only when new felony conviction is serious or violent. May authorize re-sentencing if third strike conviction was not serious or violent. Fiscal Impact: Ongoing state correctional savings of around $70 million annually, with even greater savings (up to $90 million) over the next couple of decades. These savings could vary significantly depending on future state actions.

Voter Information Guide For 2012, General Election

Propositions

No abstract provided.

A Saving Grace - The Impact Of The Fostering Connections To Success And Increasing Adoptions Act On America's Older Foster Youth, May Shin

UC Law Journal of Race and Economic Justice

This note examines the struggles of youths who must leave state foster care systems (called "aging out" of foster care) upon turning eighteen years old. Thousands of young people age out of foster care systems each year. Foster care systems have traditionally abandoned children upon their eighteenth birthday, without providing aged-out youth real assistance in obtaining employment, health services, or basic shelter. Most commonly, these young adults do not have sufficient resources or support to allow them to transition into safe and stable lives. The majority of these older youths either get incarcerated, become homeless, or are forced to depend …

The Impact Of Berguis V. Thompkins On The Eroding Miranda Warnings And Limited-English Proficient Individuals: You Must Speak Up To Remain Silent, Brenda L. Rosales

UC Law Journal of Race and Economic Justice

Miranda v. Arizona requires law enforcement to warn defendants of their right to remain silent and give defendants an explanation that anything said can and will be used against the defendant in court. However, Berghuis v. Thompkins turned Miranda upside down by requiring defendants to unambiguously invoke their right to remain silent or be legally presumed to have waived their rights. Meaning that a defendant's yes or no answer to any question, including questions unrelated to the case, may be interpreted as a knowingly and intelligent waiver of the defendant's Miranda rights.

This note will address how the lower standard …

Perception Profiling & Prolonged Solitary Confinement Viewed Through The Lens Of The Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged, And Justice Becomes Legally Blind, Angela A. Allen-Bell

UC Law Constitutional Quarterly

Solitary confinement is a tool used by the American prison system without a sufficient check on its application. Current practice provides that an inmate's solitary confinement is reviewed at regular intervals by Executive-branch prison administrators. They have employed it to enforce discipline and order in the prison population, but simultaneously have ridden roughshod over inmates' substantive due process rights by failing to provide a meaningful opportunity for a hearing of the facts and justifications for the continued and prolonged solitary confinement of prison inmates. Many, too many inmates have been kept in solitary confinement for extended periods-some for decades-without any …

Advising Terrorism: Material Support, Safe Harbors, And Freedom Of Speech, Peter Margulies

UC Law Journal

Ever since Brandenburg v. Ohio, departures from content neutrality under the First Amendment have received strict scrutiny. However, in Holder v. Humanitarian Law Project (“HLP”), the Supreme Court decided that the perils of content regulation were less pressing than was the need to curb the human capital of groups, such as Hamas, designated as foreign terrorist organizations (“DFTOs”). As a result, the Court upheld a statute that bars “material support” of terrorist organizations, ruling that the statute bars speech coordinated with DFTOs, including training in negotiation or the use of international law. Some commentators have labeled HLP as heralding a …

Note – Why Can’T We Be “Friends”? A Call For A Less Stringent Policy For Judges Using Online Social Networking, Brian Hull

UC Law Journal

Judges are increasingly using social networking websites like Facebook, Twitter, LinkedIn, MySpace, and Google+, and, naturally, the question arises: What are the ethical limits for judges doing so? A number of judicial ethics committees and others knowledgeable about judicial ethics have analyzed this question. Not all, however, were familiar with the nuances of online social networking. The California Judges Association falls into both of these categories. In November 2010, it released an advisory opinion, Opinion 66, describing its views on judges using social networking sites. This Note details the views expressed by Opinion 66 and by opinions from Florida, Indiana, …

California And The Future Of Partial Match Dna Investigations, Jenny Choi

UC Law Constitutional Quarterly

Though DNA testing has been successfuly used in the United States since the 1980s, many high profile prosecutions have thrust this forensic tool into general acceptance as well as the public consciousness. In 2008, California broke new forensic ground, authorizing "partial match" DNA testing to augment the arsenal of law enforcement tools. This proactive technique has yielded substantial results, but has also opened the door to criticism.

This Note analyzes the history of DNA testing in California and nationally, including the progression towards partial match testing. This Note also considers constitutional, social, and policy concerns raised by the use of …

Perceiving And Reporting Domestic Violence Incidents In Unconventional Settings: A Vignette Survey Study, Hadar Aviram, Annick Persinger

UC Law SF Journal on Gender and Justice

Domestic violence abuse is under-reported to police, but has long been viewed only through a lens of female oppression. Some literature suggests that in unconventional abusive relationships, such as in same-sex relationships or in relationships with a female batterer and male victim, the problem of under-reporting is more severe. This Article uses a vignette survey design to examine the tendencies to report such incidents to the police, by controlling for the type of relationship, the existence of outing threats, and the presence of mutual violence. Compared to the typical scenario involving a male batterer and female victim, we find significantly …

Guilty By Proxy: Expanding The Boundaries Of Responsibility In The Face Of Corporate Crime, Amy J. Sepinwall

UC Law Journal

The BP oil spill and financial crisis share in common more than just profound tragedy and massive clean-up costs. In both cases, governmental commissions have revealed widespread wrongdoing by individuals and the entities for which they work. The public has demanded justice, yet the law enforcement response in both cases has been underwhelming. In particular, no criminal indictments have been sought for any of the corporations responsible for the Macondo oil-rig explosion or for the Wall Street banks involved in the financial meltdown. This governmental restraint reflects a deep-seated ambivalence about corporate criminal liability. Though scholars have been debating the …