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Dignity And The Death Penalty In The United States Supreme Court, Bharat Malkani Jan 2017

Dignity And The Death Penalty In The United States Supreme Court, Bharat Malkani

UC Law Constitutional Quarterly

The concept of dignity is central to moral and legal issues about the death penalty. The United States Supreme Court has justified the use of dignity to retain the use of the death penalty. However, this article argues that dignity should not be used as a means to uphold the use of capital punishment. Instead, the concept of dignity involves the relationship between the "human dignity" of the people involved in the crime, the dignity of the wider community in whose name the death penalty is being imposed, and the dignity of the legal institution that administers capital punishment. As …

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Protecting Our Defenders: The Need To Ensure Due Process For Women In The Military Before Amending The Selective Service Act, Kelsey L. Campbell Jan 2017

Protecting Our Defenders: The Need To Ensure Due Process For Women In The Military Before Amending The Selective Service Act, Kelsey L. Campbell

UC Law Constitutional Quarterly

On January 1, 2016, all previously closed frontline military occupations were opened to women for the first time in U.S. history. Shortly thereafter, several military leaders and politicians stated that due to the change in policy, women were then "equal to men" in the military and, therefore, should be required to register for Selective Service-the system that maintains a list of Americans fit for service in the event a military draft is requested by the president. While the recent change extended employment opportunity to women within the military, a number of polices and laws prevent women from achieving equality in …

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Nudging The Criminal Justice System Into Listening To Crime Victims In Plea Agreements, Dana Pugach, Michal Tamir Jan 2017

Nudging The Criminal Justice System Into Listening To Crime Victims In Plea Agreements, Dana Pugach, Michal Tamir

UC Law SF Journal on Gender and Justice

The Crime Victim’s Rights Act has given victims “the right to participate in the system.” However, crime victims remain marginalized as their involvement in plea agreements is yet under enforced. This article reveals the largely unnoticed gap between the victim’s rights and the disadvantaged reality they experience in plea agreements. Further, the paper identifies the legal causes that led to this gap; namely, the broad discretion and dominance of the prosecution on the one hand, and the victim’s lack of enforcement mechanisms to participate on the other. The article provides a solution whose novelty is twofold. First, the solution advocated …

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Agent Narc Is Not Your Client: Reflections On The Proper Understanding Of The Relationship Between Prosecutors And Investigating Agencies, Carrie Leonetti Jan 2017

Agent Narc Is Not Your Client: Reflections On The Proper Understanding Of The Relationship Between Prosecutors And Investigating Agencies, Carrie Leonetti

UC Law Constitutional Quarterly

Assistant United States Attorneys increasingly conceive federal lawenforcement agents as their "clients" in criminal prosecutions. As both a descriptive and normative matter, this cannot be right. As a descriptive matter, official interpretations by the Department of Justice, the bench, the bar, and academic commentators almost always reject this "client" conception. It is inconsistent with the conception of prosecutorial obligations espoused by Brady v. Maryland, the American Bar Association model rules of ethics, federal statutes, and evidentiary law. As a normative matter, it could have serious implications for the law of attorney malpractice, prosecutorial immunity, the disclosure of favorable evidence to …

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Allowing Lawless Police Conduct In Order To Forbid Lawless Civilian Conduct: The Court Further Erodes The Exclusionary Rule In Utah V. Strieff, George M. Dery Iii Jan 2017

Allowing Lawless Police Conduct In Order To Forbid Lawless Civilian Conduct: The Court Further Erodes The Exclusionary Rule In Utah V. Strieff, George M. Dery Iii

UC Law Constitutional Quarterly

This Article analyzes Utah v. Strieff, in which the Supreme Court applied its attenuation of taint doctrine to drugs and paraphernalia recovered as a result of an illegal stop of a person. The Strieff Court ruled that the evidence, seized during a search incident to arrest after an unlawful seizure, was admissible because the officer learned of an unknown outstanding arrest warrant during the stop. Strieff reasoned that the discovery of this arrest warrant attenuated the connection between the initial illegal seizure and the evidence ultimately seized incident to arrest. This Article examines the concerns created by Strieffs ruling. This …

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Trumping Asylum: Criminal Prosecutors For Illegal Entry And Reentry Violate The Rights Of Asylum Seekers, Natasha Arnpriester Jan 2017

Trumping Asylum: Criminal Prosecutors For Illegal Entry And Reentry Violate The Rights Of Asylum Seekers, Natasha Arnpriester

UC Law Constitutional Quarterly

Criminal prosecution for the immigration-related infractions of illegal entry and illegal reentry have escalated dramatically under the Trump Administration, which has made targeting immigrants a top priority. This escalation is happening at a time when the population coming to the U.S. southern border is largely seeking safety from persecution and danger. The United States does not recognize asylum as a defense to illegal entry or illegal reentry, and asylum seekers are not excluded from being charged and criminally prosecuted for these infractions, despite U.S. treaty obligations prohibiting this practice. As a result, people coming to the United States to seek …

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The Fragile Victory For Unaccompanied Children's Due Process Rights After Flores V. Sessions, Elizabeth P. Lincoln Jan 2017

The Fragile Victory For Unaccompanied Children's Due Process Rights After Flores V. Sessions, Elizabeth P. Lincoln

UC Law Constitutional Quarterly

In 2017, the Ninth Circuit Court of Appeals found that when the federal government detains an unaccompanied child, that child has the right to request legal review of his or her custody before an immigration judge. In Flores v. Sessions, the court reaffirmed the right, which had been present in the text of the laws governing the treatment of immigrant youth, but had been ignored by executive branch bodies. In its analysis, the court considered the relationship between a twenty-year-old settlement and two acts of Congress that govern the treatment of immigrant youth. The Flores decision affects the lives of …

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Cops And Pleas: Police Officers' Influence On Plea Bargaining, Jonathan Abel Jan 2017

Cops And Pleas: Police Officers' Influence On Plea Bargaining, Jonathan Abel

Faculty Scholarship

Police officers play an important, though little-understood, role in plea bargaining. This Essay examines the many ways in which prosecutors and police officers consult, collaborate, and clash with each other over plea bargaining. Using original interviews with criminal justice officials from around the country, this Essay explores the mechanisms of police involvement in plea negotiations and the implications of this involvement for both plea bargaining and policing. Ultimately, police influence in the arena of plea bargaining -long thought the exclusive domain of prosecutors -calls into question basic assumptions about who controls the prosecution team.

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Discovering Forensic Fraud, Jennifer D. Oliva, Valena E. Beety Jan 2017

Discovering Forensic Fraud, Jennifer D. Oliva, Valena E. Beety

Faculty Scholarship

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny. In the criminal system, the near absence of any pretrial discovery means …

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Introduction Of Videotaping Of Interrogations And The Lessons Of The Imaichi Case: A Case Of Conventional Criminal Justice Policy-Making In Japan, Setsuo Miyazawa, Mari Hirayma Jan 2017

Introduction Of Videotaping Of Interrogations And The Lessons Of The Imaichi Case: A Case Of Conventional Criminal Justice Policy-Making In Japan, Setsuo Miyazawa, Mari Hirayma

Faculty Scholarship

No abstract provided.

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How To Assess The Real World Application Of A Capital Sentencing Statute: A Response To Professor Flanders’S Comment, John Mills Jan 2017

How To Assess The Real World Application Of A Capital Sentencing Statute: A Response To Professor Flanders’S Comment, John Mills

Faculty Scholarship

In assessing the constitutionality of a capital sentencing regime, the raw number of aggravating factors is irrelevant. What matters is their scope. To pass constitutional muster, aggravating factors (or the equivalent) must narrow the scope of death eligibility to the worst-of-the-worst. Professor Chad Flanders wants courts to ignore empirical assessments of the scope of aggravating circumstances and uses an imagined State of Alpha as his jumping off point. This response to Prof. Flanders makes the case for looking at the actual operation of a law, not just its reach in the abstract. This response focuses on Arizona’s capital sentencing regime …

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Human Rights From The Ground Up: Building The First Law School Legal Aid Clinic In Haiti, Kate Bloch, Roxanne Edmond-Dimanche Jan 2017

Human Rights From The Ground Up: Building The First Law School Legal Aid Clinic In Haiti, Kate Bloch, Roxanne Edmond-Dimanche

Faculty Scholarship

No abstract provided.

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Felon Disenfranchisement, Hadar Aviram, Allyson Bragg, Chelsea Lewis Jan 2017

Felon Disenfranchisement, Hadar Aviram, Allyson Bragg, Chelsea Lewis

Faculty Scholarship

No abstract provided.

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Reliance On Nonenforcement, Zachary S. Price Jan 2017

Reliance On Nonenforcement, Zachary S. Price

Faculty Scholarship

No abstract provided.

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Tallinn, Hacking, And Customary International Law, Ahmed Ghappour Jan 2017

Tallinn, Hacking, And Customary International Law, Ahmed Ghappour

Faculty Scholarship

No abstract provided.

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East Asian Court Reform On Trial: Introduction To The Symposium, Setsuo Miyazawa Jan 2017

East Asian Court Reform On Trial: Introduction To The Symposium, Setsuo Miyazawa

Faculty Scholarship

No abstract provided.

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Seeking A Rational Approach To A Regional Refugee Crisis: Lessons From The Summer 2014 ‘Surge’ Of Central American Women And Children At The Us-Mexico Border, Karen Musalo, Eunice Lee Jan 2017

Seeking A Rational Approach To A Regional Refugee Crisis: Lessons From The Summer 2014 ‘Surge’ Of Central American Women And Children At The Us-Mexico Border, Karen Musalo, Eunice Lee

Faculty Scholarship

No abstract provided.

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Reliance On Nonenforcement,, Zachary S. Price Jan 2017

Reliance On Nonenforcement,, Zachary S. Price

Faculty Scholarship

No abstract provided.

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Youth Incarceration, Health, And Length Of Stay, Thalia Gonzalez Jan 2017

Youth Incarceration, Health, And Length Of Stay, Thalia Gonzalez

Faculty Scholarship

For youth from marginalized communities, the pathway into the juvenile justice system occurs against a backdrop of disproportionately high levels of stress, complex trauma, and adverse childhood experiences. Despite overall reductions in the percentage of youth in confinement from recent state-level reforms, the lengths of stay for many youth often exceed evidence-based timelines, as well as a state’s own guidelines and criteria. This occurs despite a large and growing body of empirical research that documents the health status of system-involved youth and the association between incarceration during adolescence and the range of subsequent health and mental health outcomes in adulthood. …

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Miranda Overseas: The Law Of Coerced Confessions Abroad, David Keenan Aug 2016

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 …

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Lifting The “American Exceptionalism” Curtain: Options And Lessons From Abroad, Earl Johnson Jr. Jun 2016

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 …

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A Comparison Between The American Markets For Medical And Legal Services, Ben Barton Jun 2016

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 …

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How To Regulate Legal Services To Promote Access, Innovation, And The Quality Of Lawyering, Gillian K. Hadfield, Deborah L. Rhode Jun 2016

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 …

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From Victims To Litigants, Elizabeth L. Macdowell Jun 2016

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 …

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

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

2016 Board of Directors Agenda and Materials

No abstract provided.

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Does Antidiscrimination Law Influence Religious Behavior? An Empirical Examination, Netta Barak-Corren May 2016

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, …

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Confronting Williams: The Confrontation Clause And Forensic Witnesses In The Post-Williams Era, Taryn Jones May 2016

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 …

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Legal Indeterminacy In Insanity Cases: Clarifying Wrongfulness And Applying A Triadic Approach To Forensic Evaluations, Kate E. Bloch May 2016

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 …

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Sufficiently Safeguarded?: Competency Evaluations Of Mentally Ill Respondents In Removal Proceedings, Sarah Sherman-Stokes May 2016

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 …

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Internal Jus Ad Bellum, Eliav Lieblich Apr 2016

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 …

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