Digital Commons Network^™

Miranda Overseas: The Law Of Coerced Confessions Abroad, David Keenan

UC Law Journal

In recent years, Article III courts have become the preferred venue for the U.S. government to try terrorism suspects captured abroad. Many liberals have welcomed this development, characterizing it as a proper extension of American rule of law principles to the so-called “War on Terror.” But while many have celebrated the marginalization of the military tribunal system, few have directly acknowledged its potential costs. This Article examines one of those costs: Reduced procedural safeguards for Article III defendants against statements procured through coercive interrogation techniques. As courts have repeatedly recognized, the core purpose of the Fifth Amendment’s Self-Incrimination Clause is …

From Victims To Litigants, Elizabeth L. Macdowell

UC Law Journal

This Article reports findings from an ethnographic study of self-help programs in two western states. The study investigated how self-help assistance provided by partnerships between courts and nongovernmental organizations implicates advocacy and access to justice for domestic violence survivors. The primary finding is that self-help programs may inadvertently work to curtail, rather than expand, advocacy resources. Furthermore, problems identified with self-help service delivery and negative impacts on advocacy systems may be explained by the structure of work within self-help programs and the nature of partnerships to provide self-help services. The Author uncovers previously unseen impacts of self-help programs on survivors …

A Comparison Between The American Markets For Medical And Legal Services, Ben Barton

UC Law Journal

America’s access to justice woes are paradoxical. We have more lawyers than every country except India and more lawyers per capita than every country except for Israel. We spend more on law as an absolute amount or as a percentage of GDP than any other country. At the high end, we provide best legal services in the world. And yet we barely provide any legal services to the very poor, and our lawyers cost too much for the working poor or even the middle class. We graduate so many juris doctors that as many as a third fail to find …

How To Regulate Legal Services To Promote Access, Innovation, And The Quality Of Lawyering, Gillian K. Hadfield, Deborah L. Rhode

UC Law Journal

Scholars and critics have for decades advocated change in the professional regulation of legal services markets in order to solve the ever-widening gap in access to justice. One of the central obstacles to change has been concern about the impact of opening legal markets to new practitioners and business models on central professional values such as competence, loyalty, and independence. This Article argues that good regulatory solutions are available to ensure that more open and flexible professional models—ones that allow the practice of law by alternative providers and business structures—deliver high quality, lower cost, greater innovation, and more access to …

Lifting The “American Exceptionalism” Curtain: Options And Lessons From Abroad, Earl Johnson Jr.

UC Law Journal

Contrary to its public rhetoric promising “justice for all” and “equal justice under law,” access to civil justice in the United States is “exceptional” only in a negative sense. The Rule of Law Index ranks our nation next to last among the world’s thirty-one “richest” countries. A major reason for this is that most of our fellow industrial democracies have a right to counsel in civil cases and invest from three times to ten times more than the United States on civil legal aid. Beyond these differences, the United States has much to learn from research and other developments in …

Finance Committee Meeting Packet 05/12/2016, Uc Hastings Board Of Directors

2016 Board of Directors Agenda and Materials

No abstract provided.

Legal Indeterminacy In Insanity Cases: Clarifying Wrongfulness And Applying A Triadic Approach To Forensic Evaluations, Kate E. Bloch

UC Law Journal

Insanity law in the United States embodies a convoluted collection of often ill-defined standards. The wrongfulness test, which is used in most U.S. jurisdictions, requires a determination of whether the accused knew or had the substantial capacity to appreciate that the acts were wrong at the time the accused committed them. To assist the trier of fact in making that determination, courts and parties commonly invoke the acumen of forensic experts. But, wrongfulness in insanity law is a word with many possible meanings. In this Article, an academic forensic psychiatrist and a legal scholar propose approaches for effectively navigating this …

Does Antidiscrimination Law Influence Religious Behavior? An Empirical Examination, Netta Barak-Corren

UC Law Journal

What role should the behavioral reality of conflicts regarding gender, sexuality, and religious convictions play in the theory and doctrine of antidiscrimination law? Although the past several decades have seen broadening tension between traditional beliefs and legal and societal norms—the most recent manifestation being Obergefell v. Hodges—almost no empirical work has been done to elucidate the behavioral reality of conflicts between religion and antidiscrimination law. This Article is the first empirical behavioral study on the decisions made by religious people under norm conflict. Drawing on two decision experiments with over 3500 religious individuals and in-depth interviews with senior religious managers, …

Sufficiently Safeguarded?: Competency Evaluations Of Mentally Ill Respondents In Removal Proceedings, Sarah Sherman-Stokes

UC Law Journal

In this Article, I examine the current regime for making mental competency determinations of mentally ill and incompetent noncitizen respondents in immigration court. In its present iteration, mental competency determinations in immigration court are made by immigration judges, most commonly without the benefit of any mental health evaluation or expertise. In reflecting on the protections and processes in place in the criminal justice system, and on interviews with removal defense practitioners at ten different sites across the United States, I conclude that the role of the immigration judge in mental competency determinations must be changed in order to protect the …

Confronting Williams: The Confrontation Clause And Forensic Witnesses In The Post-Williams Era, Taryn Jones

UC Law Journal

In Williams v. Illinois, the division of the U.S. Supreme Court created substantial confusion as to the proper application of the Confrontation Clause to forensic witnesses. In the decision, the Court affirmed the conviction of the defendant, Sandy Williams, because the plurality and Justice Thomas, in his concurrence, determined that the DNA profile produced by an outside laboratory was not testimonial and thus Williams did not have a constitutional right to crossexamine the laboratory analysts. The plurality and the concurrence, however, presented two distinct rationales for deeming the report nontestimonial. The case has consequently left lower courts without firm guidance …

Internal Jus Ad Bellum, Eliav Lieblich

UC Law Journal

In 1945, the United Nations Charter famously set out “to save succeeding generations from the scourge of war.” Having in mind traditional interstate wars, the Charter’s Article 2(4) outlawed, for the first time, interstate uses of force. However, nowadays, international wars are relatively rare, while civil wars are both more numerous and increasingly destructive. Still, international law has yet to develop a regime regulating the resort to war (jus ad bellum) within a state, either by governments or opposition groups. Contemporary jus ad bellum, thus, fails to address one of the most atrocious forms of war in the modern international …

Uc Hastings (Fall 2016), Hastings College Of The Law Alumni Association

Hastings Alumni Publications

No abstract provided.

Voter Information Guide For 2016, General Election

Propositions

California General Election

The Right To Education For Unaccompanied Minors, Jeanette M. Acosta

UC Law Constitutional Quarterly

In response to the increase of unaccompanied minors seeking refuge in the United States in 2014, officials within federal, state, and local institutions readied themselves to receive and serve a greater number of child migrants in detention facilities, shelters, immigration courts, and public schools. While attention has been paid to the need for legal representation of unaccompanied minors and the need to end the inhumane detention of children, this Note reveals the state of educational opportunities and services provided for unaccompanied minors in detention facilities, shelters, and public schools. This Note looks to the role education plays in the lives …

Why Reforms Alone Are Insufficient To Strengthen The Judiciary: A Case Study Of Guatemala's Judicial Selection Processes, Mirte Postema

UC Law SF International Law Review

No abstract provided.

Victims, Violence, And Voice: Transitional Justice, Oral History, And Dealing With The Past, Anna Bryson

UC Law SF International Law Review

Transitional justice is concerned with the legal and social processes established to deal with the legacy of violence in post-authoritarian and post-conflict contexts. The interview-in different guises, contexts and settings-is at the heart of most transitional justice processes. Prosecutorial mechanisms, truth recovery commissions, assessments for reparations, applications for amnestyall of these and more are fueled by the art of one human being interviewing another and then presenting or "re-presenting" the material recorded, to make it "fit" with the broader transitional goals of a particular institution. Most transitional justice institutions are, in the final analysis, "creatures of law." They are typically …

Death Penalty. Initiative Statute.

Propositions

Repeals death penalty as maximum punishment for persons found guilty of murder and replaces it with life imprisonment without possibility of parole. • Applies retroactively to persons already sentenced to death. • States that persons found guilty of murder and sentenced to life without possibility of parole must work while in prison as prescribed by the Department of Corrections and Rehabilitation. • Increases portion of life inmates’ wages that may be applied to victim restitution. • Net ongoing reduction in state and county costs related to murder trials, legal challenges to death sentences, and prisons of around $150 million annually …

Death Penalty. Procedures. Initiative Statute.

Propositions

Changes procedures governing state court appeals and petitions challenging death penalty convictions and sentences. • Designates superior court for initial petitions and limits successive petitions. • Establishes time frame for state court death penalty review. • Requires appointed attorneys who take noncapital appeals to accept death penalty appeals. • Exempts prison officials from existing regulation process for developing execution methods. • Authorizes death row inmate transfers among California prisons. • Increases portion of condemned inmates’ wages that may be applied to victim restitution. • States other voter approved measures related to death penalty are void if this measure receives more …

Marijuana Legalization. Initiative Statute.

Propositions

Legalizes marijuana under state law, for use by adults 21 or older. • Designates state agencies to license and regulate marijuana industry. • Imposes state excise tax of 15% on retail sales of marijuana, and state cultivation taxes on marijuana of $9.25 per ounce of flowers and $2.75 per ounce of leaves. • Exempts medical marijuana from some taxation. • Establishes packaging, labeling, advertising, and marketing standards and restrictions for marijuana products. • Prohibits marketing and advertising marijuana directly to minors. • Allows local regulation and taxation of marijuana. • Authorizes resentencing and destruction of records for prior marijuana convictions. …

Police Terror And Officer Indemnification, Allyssa Villanueva

UC Law Journal of Race and Economic Justice

Police accountability has quickly pressed to the forefront of national conversations and subsequently, the national political agenda. Increasing prevalence of excessive and lethal use of force by police officers induced this attention. President Obama convened a Task Force on 21st Century Policing, after the Department of Justice conducted several pattern and practice investigation of misconduct following the high‐profile deaths of unarmed Michael Brown and Eric Garner. Their deaths both resulted in no criminal charges against responsible officers. Civil suit was the only option left for officer accountability. This Note addresses the use of 42 U.S.C. §1983 as the common civil …

Reforming High-Stakes Police Departments: How Federal Civil Rights Will Rebuild Constitutional Policing In America, Ivana Dukanovic

UC Law Constitutional Quarterly

Over the past two decades, the Justice Department has untaken dozens of topdown interventions of local police departments plagued with unconstitutional policing. From Albuquerque, New Mexico, to Ferguson, Missouri, the Justice Department's Civil Rights Division has instituted reform in departments exhibiting patterns or practices that violate individuals' constitutional rights. The government's tool for imposing such reform and oversight on local, state power is a twenty-three-year-old statute: 42 U.S.C. 14141. This Note proposes that § 14141 is the change agent for rebuilding constitutional policing in America.

But with change comes challenge, and many pushback departments continue to resist reform. The Note …

Shocking The Eighth Amendment's Conscience: Applying A Substantive Due Process Test To The Evolving Cruel And Unusual Punishments Clause, Jency Megan Butler

UC Law Constitutional Quarterly

Excessive force is today's most prominently debated governmental abuse. The "shocks the conscience" test is a widely used substantive due process protection that analyzes excessive force claims. More specifically, under excessive force law, the "shocks the conscience" test evaluates whether the government has violated a person's constitutional rights. This Note begins with an overview of Eighth Amendment history and articulates a problem in today's Cruel and Unusual jurisprudence created by the Supreme Court's unsettled proportionality review. This Note then proposes that the Cruel and Unusual Punishments Clause should be interpreted with the "shocks the conscience" standard. For an Eighth Amendment …

Waiving Goodbye: In Memory Of The Reasonable-Doubt Standard, Steven Wall

UC Law Constitutional Quarterly

This Note will focus on the unique helplessness of innocent defendants who have plead guilty in cases involving governmental misconduct. The Supreme Court has recognized that our criminal justice system is, for the most part, a system of pleas rather than trials. Unfortunately, there are many indications that innocent people plead guilty. The most developed realm of law being used to push for measures to reduce the occurrence of this phenomena is the body of cases stemming from Brady v. Maryland. Brady v. Maryland requires prosecutors to disclose material exculpatory evidence (evidence demonstrating actual innocence) and impeaching evidence at trial. …

Youthfulness Matters: A Call To Modernize Juvenile Waiver Statutes, Chelsea Ellen Heaney

UC Law Constitutional Quarterly

The fundamental values that underlie the juvenile justice system have developed and changed since its inception in 1899. A system that was once focused on rehabilitating and protecting troubled youth, has developed into a system focused on punishing and confining youth. A decade of increased juvenile crime rates in the United States from the mid-1980s to the mid- 1990s, led many states to change their policies regarding the treatment of juvenile delinquents. Specifically, between 1992 and 1994, forty-nine out of the fifty states broadened or enacted legislation making it easier for juveniles to be tried as adults. Automatic and mandatory …

“What Is Old Is New Again”: Comments On Malcolm Feeley’S Tappan Lecture, Hadar Aviram

Faculty Scholarship

No abstract provided.

Improving Access To Justice In Developing And Post-Conflict Countries: Practical Examples From The Field, Jessica Vapnek, Peter Boaz, Helga Turku

Faculty Scholarship

No abstract provided.

Juvenile Life Without Parole In Law And Practice: Chronicling The Rapid Change Underway, John Mills, Anna M. Dorn, Amelia Courtney Hritz

Faculty Scholarship

This Article provides a comprehensive examination of juvenile life without parole ('"LWOP") both as a policy and in practice. Beginning in 2010, the U.S. Supreme Court has repeatedly held that the Eighth Amendment of the U.S. Constitution restricts the reach of JLWOP sentences, first prohibiting it for non-homicide offenses, then proscribing its mandatory application for any offense, and, in 2016, clarifying that it may only be imposed in the rare instance in which a juvenile's homicide demonstrates his or her "irreparable corruption. " The legislative responses to these cases have been to either abandon or restrict JLWOP's application. These legislative …

Beyond Legality: Understanding The Legitimacy Of Executive Action In Immigration Law, Ming Hsu Chen

Faculty Scholarship

No abstract provided.

The American Bar Association's Criminal Justice Mental Health Standards: Revisions For The Twenty-First Century, Christopher Slobogin

UC Law Constitutional Quarterly

The American Bar Association's revision of its Criminal Justice Mental Health Standards ("Standards"), promulgated in August 2016, tackles a wide range of issues concerning the involvement of people with mental disabilities in the criminal justice system. Consisting of over ninety black letter provisions, the Standards address diversion and specialized courts; the role of mental health professionals, the police, lawyers and correctional officials in cases involving people with mental disabilities; and the law and processes associated with competency, insanity, commitment, and capital and non-capital sentencing. This article describes the genesis of the Standards and explains their content, organized in terms of …

Procedural Due Process Liberty Interests, Ann Woolhandler

UC Law Constitutional Quarterly

The Supreme Court's divided decision inKerry v. Din, 135 S. Ct. 2128 (2015), shows the difficulty of defining liberty for purposes of procedural due process. Din, a United States citizen, claimed that she had been denied procedural due process when the State Department refused to grant an immigrant visa to her husband. Justice Scalia's plurality opinion reasoned that Din had no liberty interest protected by procedural due process, while Justice Breyer's dissent concluded that Din had such an interest based on fundamental rights involving marriage, the right of citizens to reside in the country, and statutory immigration preferences for spouses. …