Digital Commons Network^™

Criminal Law: Felons, Firearms, And The “Federalization” Of Crime, Jonathan Abel

The Judges' Book

No abstract provided.

Criminal Procedure Without Consent, Kate Weisburd

Faculty Scholarship

Scholars and advocates have long argued that a person’s consent to a warrantless police search is often so inherently coerced, uninformed, and shaped by race, class, gender, citizenship status, and disability that to call it a “choice” is fiction. This critique is not limited to police searches based on consent. Waiving rights and consenting to otherwise unconstitutional state action permeates criminal procedure. The definition of a seizure, the third-party doctrine, custodial confessions, plea bargains, and agreements to alternatives to incarceration (such as GPS ankle monitoring) all hinge on the idea of voluntary choices—choices that are often just as coerced and …

Secretive Sheriffs: Opacity And Variation In California's Jail Responses To Covid-19, Hadar Aviram, Aparna Komarla

Faculty Scholarship

Agnotology is the study of culturally induced ignorance or doubt, particularly the publication of inaccurate or misleading scientific data. In this Article, we draw attention to a disturbing site of agnotology: healthcare in California jails. Often obscured because of the attention to state prisons, jails were sites of opacity and misinformation, largely because of sheriffs’ refusal to collaborate with data collection efforts—both coordinated by the state and solicited through non-profits.

Building on the data collection effort of the Covid In-Custody Project and on public advocacy efforts of the #StopSanQuentinOutbreak coalition and its off-shoots, we show the chasm between data on …

The Uncertain Future Of Restorative Justice: Anti-Woke Legislation, Retrenchment And Politics Of The Right, Thalia González, Mara Schiff

Center for Racial and Economic Justice

No abstract provided.

Will The New Roberts Court Revive A Formalist Approach To Fourth Amendment Jurisprudence?, Roger Antonio Tejada

UC Law Constitutional Quarterly

While all Chief Justices leave behind distinctive periods of judicial thought and practice, the quantitative and qualitative data presented in this article show that the Roberts Court in particular stands out in the development of Fourth Amendment precedent. The key cases that shaped the search and seizure doctrine before and during his rise show that, contrary to what many may expect, Chief Justice Roberts will likely oversee limited, pro-defendant decisions that could grant additional legitimacy to the Court’s crime-control jurisprudence. On the other hand, the new Justices’ voting records and writings suggest that there are several potential coalitions that could …

The Kkk, Immigration Law And Policy, And Donald Trump, Kevin Johnson

UC Law Journal

Many Americans know the Ku Klux Klan (KKK) for its horrific acts of violence directed at African Americans. Although generally overshadowed by that violence, the KKK’s vilification of other groups, including immigrants and religious minorities, long has been central to its quest for white Anglo-Saxon supremacy. This Essay analyzes the enduring legacy of the KKK’s immigration philosophy on contemporary American immigration law and politics. Some modern anti- immigrant advocates champion remarkably similar policies to the Klan’s with racial animus on full display. Former President, and the 2024 Republican nominee for President, Donald Trump is an example.

Black Equal Citizenship And Residential Segregation In The Supreme Court’S Race Jurisprudence, Gabriel J. Chin

UC Law Journal

No abstract provided.

Daca’S Stratified Tracks For Economic Mobility And Lessons For Addressing Immigrants’ Long-Term Inequality, Els De Graauw, Shannon Gleeson

UC Law Journal

Since 2012, the politically tenuous Deferred Action for Childhood Arrivals (DACA) program has provided temporary deportation relief and work authorization to over eight hundred thirty-five thousand undocumented young people who fit certain criteria. This Essay draws on one hundred fifteen interviews with DACA applicants in California, New York, and Texas during the heyday of the program to better understand its impacts on recipients’ school and work experiences. We confirm many of the key benefits DACA status has provided to recipients, notably opening doors for them educationally and professionally.

However, our research also confirms DACA’s uneven impacts. Those without four-year college …

Opt Out Or Pipe Down, You Traded Your Data Away: Balancing Computer Crime Prevention, Third-Party Data, And Individual Privacy Rights, Ken Sterling

UC Law Science and Technology Journal

This article explores the complex issue of governments’ access to thirdparty user data without search warrants in the detection, prevention, and prosecution of computer crimes. Topics under analysis include balancing data privacy and public safety, the application of the Fourth Amendment, and seminal court cases such as Riley, Carpenter, and Smith v. Maryland. Cybercrime poses a significant threat to society, businesses, individuals, and governments. While privacy advocates argue for warrant-based access to user data, individuals readily “opt in” and share their data with companies, raising the question of why stricter standards should apply to government use. This article proposes that …

Old Wine In A New Bottle? – An Empirical Evaluation Of The Judicial Reforms In China In The 2010s, Peter C.H. Chan

UC Law SF International Law Review

This article provides an empirical evaluation of the effectiveness of the judicial reform measures implemented in China in the 2010s. Among other objectives, the reforms aimed to strengthen the independence of judges, the financial autonomy of courts and the professionalism of adjudicators. Critics have questioned the success of the reforms, citing continued government intervention with adjudication and unchanged structural problems with courts. To date, there has been limited empirical literature focusing specifically on the judicial reform measures in the 2010s in China. This article provides a glimpse into what really was happening on the ground since the reforms through the …

Care And Custody In Federal Bank Robbery, Victor Qiu

UC Law Journal

By the time federal appellate courts began to examine the withdrawal of money from an ATM and the question of to whom that money belongs pursuant to the first paragraph of the Federal Bank Robbery Act (“FBRA”), 18 U.S.C. § 2113(a), the FBRA had been law for over seventy years and automated teller machines (“ATM”) had been in use for around thirty-five years. Since then, the circuit courts have disagreed as to whom the money belongs when an individual forces a victim to withdraw money and give it to the perpetrator. This question stems from competing methods of statutory interpretation …

A Path Toward Race-Conscious Standards For Youth: Translating Adultification Bias Theory Into Doctrinal Interventions In Criminal Court, Jessica Levin

UC Law SF Journal on Gender and Justice

This article demonstrates how advocates can leverage empirical literature regarding adultification bias to craft doctrinal interventions that recognize and remedy the disproportionately harsh treatment of Black youth in the juvenile and adult criminal legal system. Through case examples, all of which I litigated in the Civil Rights Clinic at Seattle University School of Law, I demonstrate how adultification bias was used to explain the racial disproportionality in the transfer of young people to adult court for prosecution, as well as the harshness of the sentences received by young people in both juvenile and adult court. These cases provide roadmaps for …

Final Form, Ellen M. Slatkin

UC Law SF Journal on Gender and Justice

No abstract provided.

A Cross-Clinic Collaboration: How An Amicus Brief Helped Create Judicial Recognition Of Adultification Bias In Juvenile Sentencing, Jessica Levin

UC Law SF Journal on Gender and Justice

No abstract provided.

Big Capital & The Carceral State, Laura I. Appleman

UC Law Journal

Who is accountable for the imposition of punishment in our carceral system? The answer used to be much simpler, as we held local, state, and federal government actors responsible. In recent decades, however, our correctional system has become increasingly privatized, with deeply troubling results. All aspects of the carceral state—whether prisons, jails, juvenile detention, rehabilitation, forensic hospitals, bail, or electronic monitoring—have dramatically increased their use of privatized correctional services.

With this new world of privatized corrections, we frequently don’t know whom can be held accountable when wrongdoing occurs. The bulk of our correctional services are now provided by complicated web …

Ciudadanos Sin Derechos: The Plight Of Puerto Rican Prisoners, Maylee Carbajal

UC Law Journal of Race and Economic Justice

No abstract provided.

Injustice Anywhere: A Comparative Law Analysis Of Saudi Arabia’S Criminal Justice System, Cooper C. Millhouse

UC Law SF International Law Review

A narrow understanding of other nations’ judicial systems begets unsupported assumptions about the way a justice system should operate. While many western commenters have publicized the failures of Middle Eastern societies to protect individual rights, much of the existing literature fails to analyze the legal structures which perpetuate injustice and the motivations that keep the institutions in place. This article illuminates the goals Saudi Arabia’s justice system, inspects how those goals parallel the goals of other common law and civil law systems, and evaluates whether Saudi Arabia’s system is able to effectively accomplish its aims.

This article argues that Saudi …

Privacy Law: Police Secrecy Exceptionalism, Christina Koningisor

The Judges' Book

No abstract provided.

Getting Off Off-Duty: The Impact Of Dobbs On Police Officers’ Private Sexual Lives, Joshua Arrayales

UC Law Constitutional Quarterly

Upon its leak and subsequent official release, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization shocked and worried the nation. Overnight, the Court overturned forty-nine years of precedent. Those forty-nine years of overturned precedent not only implicate the ability to obtain abortion, but also the ability to engage in relationships, marry, make decisions about our own body, and keep our personal lives private. As a result, many advocates worry about the status of fundamental rights since many of those rights relied on the now overturned cases Roe v. Wade and Planned Parenthood v. Casey as well as …

Constitutional Law: Faithful Execution In The Fifty States, Zachary S. Price

The Judges' Book

No abstract provided.

Crej Annual Report 2023-2024, Center For Racial And Economic Justice

Center for Racial and Economic Justice

No abstract provided.

Mass Surveillance As Racialized Control, Prithika Balakrishnan

Center for Racial and Economic Justice

No abstract provided.

The Inadmissibility Of Victim Impact Evidence, Fernanda Gonzalez

UC Law Constitutional Quarterly

Currently, 41% of inmates on death row in the United States are Black, even though Black people make up only 13.6% of the total population in the country. Additionally, the data has repeatedly shown that states that do not have the death penalty have lower murder rates than states that do. Despite these disparities, more than half of states in the United States continue to allow capital punishment in some form as an alternative to a life sentence. These disparities were further exacerbated by the Supreme Court’s decision in Payne v. Tennessee, which allowed prosecutors to introduce victim impact evidence …

Politicians The Founders Warned You About, Neil Fulton

UC Law Constitutional Quarterly

Many articles have explored the Founders’ intentions regarding the constitutional text. Much less attention has focused on the Founders’ ideas regarding the traits needed of the leaders in a constitutional republic. The Constitution focuses on governing structures, many of which relate to the electoral process. The Constitution does not spell out the ideal traits of the leaders elected pursuant to those processes. Nonetheless, the Founders possessed clear views about the virtues and qualifications that ideal political leaders required. Indeed, the Founders issued warnings about certain archetypal political figures who, because of their flagrant disregard of the ideal virtues and qualifications, …

The Purpose And Practice Of Precedent: What The Decade Long Debate Over Stare Decisis Teaches Us About The New Roberts Court, Russell A. Miller

UC Law Constitutional Quarterly

The Supreme Court’s tectonic decision in Dobbs v. Jackson Women’s Health upended the Doctrine of Substantive Due Process by radically reinterpreting the doctrine of stare decisis. The Court’s established practice regarding stare decisis should have operated to preserve the fifty-year-old abortion jurisprudence. But we should have seen this change coming. Although there has been an intense and involved debate over the purpose and practice of precedent for generations, that debate shifted at the beginning of 2018. Four approaches to stare decisis emerged along a continuum, from complete abandonment of the doctrine and incremental erosion to modernized adherence to precedent. This …

Editor-In-Chief’S Forward, Zoë Grimaldi

UC Law Constitutional Quarterly

No abstract provided.

Going Federal, Staying Stateside: Felons, Firearms, And The ‘Federalization’ Of Crime, Jonathan Abel

Faculty Scholarship

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers. Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity. Yet, no one has obtained the state-court data needed to substantiate these comparisons. This Article fills that gap with an examination of the …

The Road Not Taken: A Critical Juncture In Racial Preferences For Naturalized Citizenship, Ming Hsu Chen

Faculty Scholarship

In the “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government’s attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a “super-statute.” While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era as …

“Legally Magic” Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Kate Weisburd, Roseanna Sommers

Faculty Scholarship

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using “explicit,” “clear,” and “unambiguous” statements—or, as some dissenting judges have lamented, using “legally magic” words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do courts. …

Mass Surveillance As Racialized Control, Prithika Balakrishnan

Faculty Scholarship

This Article examines how the expanded use of pretrial GPS surveillance is radically changing the presumption of innocence by implicating punitive measures absent constitutional protections and amplifying the racial disparities in our criminal justice system. Largely viewed as a substitution for physical detention and therefore a less onerous intrusion on a defendant’s liberty, pretrial GPS surveillance erodes fundamental liberties under the guise of criminal justice regulation. These highly racialized but invisible repercussions include harms to physical and psychological health, freedom of movement, privacy, and future economic self-determination. I argue that, in light of these substantial harms, courts must examine how …