Digital Commons Network^™

Colorblind Nationalism And The Limits Of Liberalism, Ming Hsu Chen

Faculty Scholarship

Policymakers and lawyers posit formal citizenship as the key to inclusion. Rather than presume that formal citizenship will necessarily promote equality, this Article examines the relationship between citizenship, racial equality, and nationalism. It asks: What role does formal citizenship play in excluding noncitizens and Asian, Latinx, and Muslim citizens racialized as foreigners? What effects does it have on the meaning of being American as a non-White citizen? The Article argues that commitments to colorblind equality and democratic self-governance of the nation stand in contradiction to aspirations to protect all persons within the nation. Consequently, individual rights designed to remedy racial …

Police Secrecy Exceptionalism, Christina Koningisor

Faculty Scholarship

Every state has a set of transparency statutes that bind state and local governments. In theory, these statutes apply with equal force to every agency. Yet, in practice, law enforcement agencies enjoy a wide variety of unique secrecy protections denied to other government entities. Legislators write police-specific exemptions into public records laws. Judges develop procedural approaches that they apply exclusively to police and prosecutorial records. Police departments claim special secrecy protections from the bottom up. This Article maps the legal infrastructure of police-records secrecy. It draws upon the text of the public records statutes in all fifty states, along with …

Transparency Deserts, Christina Koningisor

Faculty Scholarship

Few contest the importance of a robust transparency regime in a democratic system of government. In the United States, the “crown jewel” of this regime is the Freedom of Information Act (FOIA). Yet despite widespread agreement about the importance of transparency in government, few are satisfied with FOIA. Since its enactment, the statute has engendered criticism from transparency advocates and critics alike for insufficiently serving the needs of both the public and the government. Legal scholars have widely documented these flaws in the federal public records law. In contrast, scholars have paid comparatively little attention to transparency laws at the …

Why Familial Searches Of Civilian Dna Databases Can And Should Survive Carpenter, Jasper Ford-Monroe

UC Law Journal

Over the past few years, a powerful new forensic technique has emerged. By uploading DNA from a crime scene to a civilian DNA database, such as GEDmatch, investigators can discover the genetic relatives of the perpetrator and thereby track down the perpetrator himself. This procedure is known as forensic genetic genealogy searching (FGGS), and in under three years it has cracked numerous decades-old cases once thought to be unsolvable.

Concerned about genetic privacy and discrimination, most legal commentators have thus far confronted FGGS with raised hackles. They either argue FGGS is a Fourth Amendment search under Carpenter, or that it …

Bottleneck: The Place Of County Jails In California’S Covid-19 Correctional Crisis, Hadar Aviram

Hastings Journal of Crime and Punishment

This Article examines a lesser-known site of the COVID-19 pandemic: county jails. Revisiting assumptions that preceded and followed criminal justice reform in California, particularly Brown v. Plata and the Realignment, the Article situates jails within two competing/complementary perspectives: a mechanistic, jurisdictional perspective, which focuses on county administration and budgeting, and a geographic perspective, which views jails in the context of their neighboring communities. The prevalence of the former perspective over the latter among both correctional administrators and criminal justice reformers has generated unique challenges in fighting the spread of COVID-19 in jails: paucity of, and reliability problems with, data; weak …

California’S Sb 1437 And Its Applicability To Attempted Murder Liability, Violeta Alvarez

Hastings Journal of Crime and Punishment

No abstract provided.

Unjust Isolation: The Diminishing Returns Of Solitary Confinement Of Pregnant Women And California’S Need To Regulate It., Richard Lee

Hastings Journal of Crime and Punishment

California’s state prison system lacks sufficient regulations to restrict the use of solitary confinement for pregnant women. Under the current system, the California Department of Corrections and Rehabilitations (CDCR) possesses broad discretion regarding the use of solitary confinement, administrative segregated housing, or other forms of isolated placement. According to the CDCR manual, prison officers may place a pregnant woman in solitary confinement as long as her medical condition does not “preclude” that placement. This standard, which vests an inappropriate amount of discretion in prison officers, is deeply insufficient to prevent the negative consequences of subjecting pregnant women to solitary confinement. …

The Kuwaiti National Assembly: A De Facto Boys’ Club, Fatemah Albader

UC Law SF Journal on Gender and Justice

No abstract provided.

The Legal Value Of Fiscal Sponsorship: A Proposal Of New Law, Emma Geering

UC Law Journal

With social conscientiousness as a core value, American society has utilized nonprofit organizations to motivate social change. But as resources are finite and expertise in the complex legal, operational, and organizational nature of charitable organizations is limited, startup or small and local nonprofit organizations are having a harder time getting off the ground. Fiscal sponsorship—a term of art used to describe the relationship between social entrepreneurs and a tax-exempt organization—provides a functional framework to charitable projects that cannot or choose to not obtain tax-exempt status. Fiscal sponsorship provides a business mechanism to advance the nonprofit sector, as it facilitates collaboration, …

The Affordable Housing Crisis: Tiny Homes & Single-Family Zoning, Lauren Trambley

UC Law Journal

Although California was by no means an affordable state to reside in prior to 2008, Californians are still experiencing the reverberating effects of the collapse of the housing market in its present affordable housing crisis. As a result of the spike in home foreclosures following the 2008 collapse, the rental market remains “tight” with low vacancies, while housing development has only slowly increased. Combined with stagnant wages, rising housing costs, and growing demand, California has failed to address its shortage of not only housing, but affordable housing. Recent state action demonstrates the desire to increase housing density. But by focusing …

Defunding Prosecutors And Reinvesting In Communities: The Case For Reducing The Power And Budgets Of Prosecutors To Help End Mass Incarceration, Udi Ofer

Hastings Journal of Crime and Punishment

No abstract provided.

Conspiracy Speech: Reimagining The First Amendment In The Age Of Qanon, Justin Hyland

UC Law SF Communications and Entertainment Journal

No abstract provided.

The Jangali Movement And How Its Themes Persist In Protests Under The Islamic Republic, Sam Atabay Bidgoli

UC Law SF International Law Review

Thanks to the Jangali Movement in the early decades of the 20th century, the northern province of Gilan in Iran was able to successfully establish a system of government that served the working-class population of the region. Although short-lived, this movement was a product of years of extreme exploitation of the labor, resources, and capital by both the national government and the global hegemonic powers of the era. The movement brought together an incredibly diverse coalition of working-class individuals who wanted to create a more equitable society. Under the current Islamic Republic of Iran, there have been several large-scale protests …

The Ideal And The Actual In Procedural Due Process, Norman W. Spaulding

UC Law Constitutional Quarterly

The law proceduralists write about and teach is nothing like what most ordinary Americans experience when they step into court. Indeed, the evidence shows that most Americans who have legal problems do not ever get to court, nor do they receive a meaningful alternative hearing. In this way both judicial and academic discourse on procedure, even among those who see glaring problems of access to justice, is idealized, abstract, and ossified—unconnected to the actual. This Essay describes the ideal/actual divide in procedure—the cognitive, doctrinal and ideological effects of lingering on the ideal side of it, and the forms of subordination …

From Threat To Victim: Why Stand Your Ground Laws Are Inherently Prejudiced And Do Nothing To Further Justice, Rene Perez

UC Law Journal of Race and Economic Justice

Stand Your Ground laws give jurors too much leeway in determining what constitutes a reasonable threat in defense cases.2 By removing the traditional duty to retreat, the reasonableness determination makes or breaks a case and inherently discriminates against people of color. This is because reasonableness can all too easily become a character determination instead of an objective adjudgment. Because Stand Your Ground is present at the investigator’s discretion stage, the prosecutorial discretion stage, and finally the judicial stage through jury instructions and juror bias—there is a unique platform for implicit bias to dictate how defendants are advantaged or disadvantaged in …

Making Immigration Law Respond To The Needs Of Building U.S. Leadership In Artificial Intelligence, Richad A. Boswell, Aditya Mohan

Faculty Scholarship

No abstract provided.

Driver’S License Suspensions For Nonpayments: A Discriminatory And Counterproductive Policy, Melissa Toback Levin

UC Law Constitutional Quarterly

Driver’s license suspensions for nonpayments of traffic debt disproportionately harm people of color and are legally untenable. Across the country, at least seven million people have had their driver’s license suspended for traffic debt—nonpayments of traffic tickets and nonappearances in traffic court. As this article demonstrates, traffic debt suspensions force people to make an impossible choice: stop driving—and lose access to work, childcare, healthcare, food, and other basic necessities— or keep driving, and risk criminal charges, more unaffordable fines and fees, and even incarceration. License-for-payment laws ultimately create conditions that parallel modern-day debtor’s prisons and are vulnerable to several legal …

Black Lives Matter: Banning Police Lynchings, Mitchell F. Crusto

UC Law Constitutional Quarterly

In the United States, police officers are granted a license to use lethal force and are subsequently exonerated from personal criminal liability for fatal killings, particularly when the victim is an African American. This Article advances the normative claim that the Court’s death penalty jurisprudence, including the “Cruel and Unusual Punishment” Clause of the Eighth Amendment, protects the victims of police homicides. Further, it contends that the police use of lethal force against African Americans constitutes “lynching”—a State-sponsored act of terror that supports systemic racism. Finally, it posits that the Constitution mandates that the police use of lethal force be …

Educational Policy Committee Meeting – Packet 08/20/2020, Uc Hastings Board Of Directors

2020 Board of Directors Agenda and Materials

No abstract provided.

Exceptional Circumstances: Immigration, Imports, The Coronavirus, And Climate Change As Emergencies, Daniel A. Farber

UC Law Journal

President Trump has used emergency powers to achieve key parts of his policy agenda, exemplified by his travel ban, funding for the border wall, and tariffs on many imports. He has also declared the 2020 coronavirus pandemic a national emergency, but has taken relatively little action under this declaration to date. This Essay examines how the Administration has invoked emergency powers in these and other settings, along with the responses of the courts. This Essay also considers how these actions could be used as precedents by future Presidents, such as declaring a climate change emergency. Finally, this Essay discusses the …

Power Lines: Climate Change And The Politics Of Undergrounding, Deborah Brundy

UC Law Journal

After years of enduring devastating loss of property and life, toxic air quality and intermittent power shutoffs, the public is primed for dramatic change to ensure a safe and resilient power grid. To achieve this, Californians are demanding that utilities bury the wires. As the court in Town of Tiburon v. Bonander emphasized over a decade ago, “it requires no independent research to support the self-evident conclusion that placing overhead utility wires underground will reduce the risk of weather-related power outages as well as the safety risk posed by downed utility poles and lines.”1 Wholesale undergrounding is not the cure-all …

Leveraging The Ilo For Human Rights And Workers’ Rights In International Sporting Events, Dantam Le

UC Law SF Communications and Entertainment Journal

Sports majorly impact the world, and millions of fans from all over the globe rally together with pride to watch their countries compete on the world’s stage in international sporting events such as the Olympic Games and the World Cup. Studies suggest that mega sporting events help host cities gain an influx of resources from the central government relative to non-host cities in the same country, and that this may be particularly important in periods of economic recession and resource scarcity. Sports play a central role in quality education for all, and sports have been found to advance public health, …

Should Consistency Be Part Of The Reform Prosecutor’S Playbook?, Kay Levine

Hastings Journal of Crime and Punishment

In this piece, I explore the value of consistency in a prosecutor’s office that is committed to racial justice, fiscal responsibility, and strategies to reduce the size of the carceral state. I argue that consistency of process, rather than consistency of outcome, is the principal value that leadership ought to embrace in furtherance of its reformist goals. In prioritizing consistency of process, the office would design a “prosecutorial calculus” to guide line prosecutors’ case management decisions (i.e., it would identify the factors that should influence whether and what to file, how to handle pre-trial release, and what to offer as …

Regressive Prosecutors: Law And Order Politics And Practices In Trump’S Doj, Mona Lynch

Hastings Journal of Crime and Punishment

No abstract provided.

Federal Right To Try Act: Heightened Informed Consent And Price Regulation Measures Will Improve Quality, Autonomy, And Exploitation Issues, Brenda Lin

UC Law Business Journal

This Note will examine the federal Right to Try Act, which was enacted on May 30, 2018. The federal statute followed the passage of Right to Try legislation in thirty-eight states, including California. Much controversy has surrounded “Right to Try” as an alternative to preexisting pathways to investigational drug treatments, such as traditional clinical trials and the FDA-regulated Expanded Access program, also commonly known as “Compassionate Use.”

This Note will examine those criticisms, evaluate the federal Right to Try Act, and propose amendments through the lenses of health care quality, patient autonomy, and long-term scientific innovation. Some controversy stems from …

Mistreating Central American Refugees: Repeating History In Response To Humanitarian Challenges, Bill Ong Hing

UC Law Journal of Race and Economic Justice

In the 1980s, tens of thousands of Central Americans fled to the United States seeking refuge from civil unrest that ravaged their countries. In a largely geopolitical response, the Reagan administration labeled those fleeing Guatemala and El Salvador as “economic migrants,” detained them, and largely denied their asylum claims. The illegal discrimination against these refugees was exposed in a series of lawsuits and through congressional investigations. This led to the reconsideration of thousands of cases, the enlistment of a corps of asylum officers, and an agreement on the conditions under which migrant children could be detained.

Unfortunately, the lessons of …

A Public Health Law Path For Second Amendment Jurisprudence, Michael R. Ulrich

UC Law Journal

The two landmark gun rights cases, District of Columbia v. Heller and McDonald v. City of Chicago, came down in 2008 and 2010, respectively. In the decade that has followed, two things have become abundantly clear. First, these cases provide little clarity about the nature and scope of Second Amendment rights, resulting in chaos and circuit splits in the lower courts. Second, growing empirical evidence has revealed that, in the background of the debate on individual constitutional rights, a serious gun violence epidemic is intensifying around the country. In one corner, gun rights advocates worry that increased firearm regulation will …

Weeding Out Injustice: Amnesty For Pot Offenders, Mitchell F. Crusto

UC Law Constitutional Quarterly

There are a growing number of States that have legalized marijuana, challenging the view that marijuana is a dangerous drug. These States are taking positions relative to both the retroactivity of the new laws and to amelioration of past offenses, which arguably contradict United States Supreme Court decisions on the retroactivity of changes in substantive criminal standards. And, many States recognize that past marijuana laws have greatly contributed to the problems related to a broken criminal justice system, including mass incarceration and racial disparities, particularly to the devastation of communities of color.

In response to these legal developments, this Article …

Authorizes New Types Of Gambling. Initiative Constitutional And Statutory Amendment.

Initiatives

Allows federally recognized Native American tribes to operate roulette, dice games, and sports wagering on tribal lands, subject to compacts negotiated by the Governor and ratified by the Legislature. Beginning in 2022, allows on-site sports wagering at only privately operated horse-racing tracks in four specified counties for persons 21 years or older. Imposes 10% tax on sports-wagering profits at horse-racing tracks; directs portion of revenues to enforcement and problem-gambling programs. Prohibits marketing of sports wagering to persons under 21. Authorizes private lawsuits to enforce other gambling laws. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact …

Decriminalizes Psilocybin Mushrooms. Authorizes Dismissal Of Prior Psilocybin-Related Convictions. Initiative Statute.

Initiatives

Decriminalizes under state law the cultivation, manufacture, processing, production of edible products and extracts, distribution, transportation, possession, storage, consumption, and retail sale of psilocybin mushrooms and the hallucinogenic chemical compounds contained in them. Applies to individuals at least 18 years of age, and to individuals under 18 years of age as prescribed by a doctor. Authorizes dismissal, resentencing, and destruction of records for prior psilocybin-related arrests and convictions. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: One-time state and local court and law enforcement costs in the tens of millions …