Digital Commons Network^™

Paying For Daniel Webster: Critiquing The Contract Model Of Advancement Of Legal Fees In Criminal Proceedings, Regina Robson

UC Law Business Journal

This article examines the contract paradigm used to structure the advancement of legal fees to employees facing criminal investigation. It posits that the current contract model does little to advance the traditional goals of advancement and prevents consideration of the legitimate purpose of advancement: to support fair and efficient prosecution of white-collar crimes. The article proposes adoption of a duty paradigm as an alternative to the contract analysis of advancement. It argues that the use of a duty model will allow for a reevaluation of the purpose of advancement in whitecollar criminal proceedings and will encourage conscious consideration of legitimate …

California Penal Code Sec. 270.1: A Constitutionally Impermissible Attempt To Combat Truancy, Alison Cordova

UC Law Constitutional Quarterly

In the 2008-2009 academic school year, over a quarter of the California public school student population was truant. There is a well established correlation between truancy and dropping out of high school. And high school dropouts make up over three quarters of the prison population of the State of California.

Responding to this alarming domino effect, the California Legislature enacted Penal Code section 270.1 in September, 2010. This statute imposes criminal liability on parents of chronically truant students for not encouraging or supervising their child's school attendance. While the aim of this law is clearly to attack criminality before it …

Suffering Without Suffrage: Why Felon Disenfranchisement Constitutes Vote Denial Under Section Two Of The Voting Rights Act, Matthew E. Feinberg

UC Law Journal of Race and Economic Justice

This article explores state felon disenfranchisement laws and proposes a new way for felons to challenge the legality of excluding them from the democratic process. Despite the seemingly explicit grant of authority in the Fourteenth Amendment to exclude felons from the voting process, this article posits that the Voting Rights Act provides an alternative, and more attractive, vehicle for felons to secure the right to vote. This article examines the current Circuit split on whether the Voting Rights Act even allows for or contains a cause of action to challenge felon disenfranchisement laws. Concluding that it does, the article moves …

Immigration, Crime, And Public Perception: Victimization Legislation In The United States And Canada - Can The U Visa Serve As A Model?, Bettina Rodriguez Schlegel

UC Law SF International Law Review

This Note compares the forces behind the creation and the implementation of crime victim visa legislation in the United States and Canada. Both are recognized globally as important immigrant-receiving nations with long histories of reliance on immigrant populations for economic growth and expansion. Both states have crafted immigration policies in line with their economic needs and societal perceptions of immigrants in relation to the dominant culture mores. This Note analyzes the two nation's historical trends in relation to immigration as a stepping stone towards understanding the current realities of immigrant life in North America and delves in to the impacts …

Choosing Your Child's Race, Dov Fox

UC Law SF Journal on Gender and Justice

Assisted reproduction has answered many couples' hopes of conceiving a child. In assisted reproduction, the appearance of racial salience matters, and adjusting the prominence of race in decision making frameworks can shape social meaning. There is a spectrum of salience-varying approaches that sperm banks could adopt to manage information about donor race, each of which sends a different message about the social meaning of donor catalog and website design. This Article considers four such approaches: race-indifferent, race-sensitive, race-attentive, and raceexclusive. Although civil rights scholarship reveals that race-based classification is not a necessary condition of wrongful discrimination, we should remain diligent …

The Role Of Reporter For A Law Project, Rory K. Little

UC Law Constitutional Quarterly

Professor Little has served as the Reporter for the ABA's Task Force to Revise the Criminal Justice Standards for the Prosecution and Defense Functions since 2005. In this introductory essay for a unique joint publication Symposium between the Hastings Constitutional Law Quarterly and the Hastings Law Journal focused on the Standards, Professor Little provides his description of the role of a Reporter for a law project. Surprisingly, despite almost a century of academics serving as Reporters for law projects sponsored by the American Law Institute and the ABA, there is no literature providing the "inside story" of a Reporter's role. …

A Different Path Taken: Texas Capital Offenders' Post-Atkins Claims Of Mental Retardation, Peggy M. Tobolowsky

UC Law Constitutional Quarterly

In 2002, in Atkins v. Virginia, the United States Supreme Court held that the execution of mentally retarded offenders is unconstitutional, and entrusted the enforcement of this constitutional ban to the states. In the absence of legislative action in Texas, the Texas Court of Criminal Appeals has established substantive and procedural standards to resolve Texas offenders' Atkins claims of mental retardation for offenders seeking state post-conviction relief. This Texas appellate court has also specified most of the standards to resolve Atkins claims at the trial court level and on direct appeal. The United States Court of Appeals for the Fifth …

Spreading The Wealth: Is Asset Forfeiture The Key To Enticing Local Agencies To Enforce Federal Drug Laws, David T. Gibson

UC Law Constitutional Quarterly

The "War on Drugs" has proven a costly program for the federal government. One of the ways that this ambitious and resource intensive effort has sustained itself is through asset forfeiture of property previously held by criminals. By seizing title to confiscated property that has been used directly in drug crimes or indirectly to further a criminal conspiracy, the government has been able to absorb substantial resources to further its efforts in waging its drug war against drug criminals.

Asset forfeiture is a powerful tool wielded by law enforcement, and can quickly and effectly shut down drug production and trafficking …

Dainty Hands: Perceptions Of Women And Crime In Sherlock Holmes Stories, Hadar Aviram

UC Law SF Journal on Gender and Justice

For the last 150 years, conventional wisdom among criminologists saw crime as a predominantly male phenomenon. Recent socio-historical research has challenged this premise, showing a decline in the presence of women in the process as criminal defendants. Cultural studies have attributed this decline to a shift in perception of female deviance, from autonomy and enterprise to passivity and predetermination. This Article follows this transition in the cultural image of women and crime through the lens of Arthur Conan Doyle's Sherlock Holmes stories. The women in the stories are not clearly distinguished by their role in the criminal enterprise (perpetrators, accomplices, …

Funding Gideon's Promise By Viewing Excessive Caseloads As Unethical Conflicts Of Interest, Heidi Reamer Anderson

UC Law Constitutional Quarterly

Some states recently have attempted to legislate around a defendant's constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Step two-the step that has slipped by without sufficient notice or criticism-is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants' Sixth Amendment rights to effective assistance.

In this article, I urge courts to "constitutionalize" the excessive caseload problem via two steps of their …

Prosecuting Heads Of State: Evolving Questions Of Venue - Where, How, And Why?, Masaya Uchino

UC Law SF International Law Review

This note surveys the different venues in which heads of state can be prosecuted. Heads of states have been tried in domestic courts, international criminal tribunals, and special "hybrid" courts. Each of these venues has a distinct set of procedures that provides different boundaries and rules for prosecutors and courts that are charging or trying a case. This note highlights how these differences can significantly impact the outcome of prosecutors' attempts to hold a head of state accountable for his crimes. To illustrate this, this note examines three very different examples of head of state prosecutions: Alberto Fujimori in Peru, …

Rectifying Wrongful Convictions: May A Lawyer Reveal Her Client's Confidences To Rectify The Wrongful Conviction Of Another, James E. Moliterno

UC Law Constitutional Quarterly

Awareness is increasing that the U.S. criminal justice system produces convictions of the innocent. Currently, except in two states (Alaska and Massachusetts), lawyer confidentiality law prevents a lawyer from revealing client information to rectify the wrongful conviction of an innocent. An interpretation of the standard future harms exception, especially with the Restatement illustration gloss, may yield permission to reveal the client's information and rectify the wrongful conviction. But that result is far from certain and is weighted down with significant factor-weighing to determine if the wrongly convicted is suffering "substantial bodily harm." Despite a broader view that would dictate revelation …

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Lissa Griffin, Stacy Caplow

UC Law Constitutional Quarterly

The newest revision of the influential ABA Standards for the Prosecution and Defense Function recognizes the changing practices and attitudes in today's criminal justice system. Placing even more responsibility on prosecutors than past versions, the proposed Standards require prosecutors to be problem-solvers and reformers who consult and cooperate with defense counsel when engaging in both routine and systemic matters. These changes signal new responsibilities for prosecutors that call for more than lip service to their role as administrators of justice. Candor, cooperation and civility are now explicit values that should pervade all dealings between prosecutors, defense lawyers and courts.

Lochner V. New York (1905) And Kennedy V. Louisiana (2008): Judicial Reliance On Adversary Argument, Douglas E. Abrams

UC Law Constitutional Quarterly

Chief Justice William H. Rehnquist called Lochner v. New York "one of the most ill-starred decisions that [the Supreme Court] ever rendered." The Justices' deliberations in the case demonstrate the courts' reliance on advocacy in the adversary system of civil and criminal justice. The stark imbalance between the state's "incredibly sketchy" brief and Joseph Lochner's sterling submission may have determined Lochner's outcome, and thus may have changed the course of constitutional history, by leading two Justices to join the majority on the central question of whether New York's maximum-hours law for bakery workers was a reasonable public health measure.

The …

Secure In Their Yards - Curtilage, Technology, And The Aggravation Of The Poverty Exception To The Fourth Amendment, Amelia L. Deidrich

UC Law Constitutional Quarterly

Throughout the history of American jurisprudence, curtilage-the physical space surrounding a home-has been deemed to share the heightened Fourth Amendment protections that have traditionally been applied to the home itself. However, a recent trend in United States Supreme Court decisions has carved out an exception to the heightened Fourth Amendment protection of curtilage. In cases involving an alleged Fourth Amendment search where technological advancements were used in the intrusion of a defendant's curtilage, the Court fails to apply the traditionally heightened Fourth Amendment protections to curtilage. This change threatens to aggravate the already present Poverty Exception to the Fourth Amendment …

Creditor Claims In Arbitration And In Court, Christopher R. Drahozal, Samantha Zyontz

UC Law Business Journal

This article compares debt collection cases brought by business claimants in arbitration-both individual AAA debt collection arbitrations and cases brought under a program of debt collection arbitrations administered by the AAA-to debt collection cases brought in court. This research adds new information to the policy debate over consumer arbitration. The differing win rates for business claimants and consumer claimants appear to result from two factors, neither of which provides evidence of bias in favor of business claimants. First, the types of claims businesses bring in arbitration tend to differ from the types of claims consumers bring. Second, business claims are …

Evil Women And Innocent Victims: The Effect Of Gender On California Sentences For Domestic Homicide, Ryan Elias Newby

UC Law SF Journal on Gender and Justice

A quantitative and qualitative examination of seventy-three domestic homicide cases in California suggests that, to the extent women and men commit domestic homicide in different ways and for different reasons, their outcomes at trial are different. Women were more likely to receive weapons enhancements because of their constrained options vis-a-vis weapon choice. However, women who are able to show prior aggression by their male partners may receive lesser sentences than their male and female counterparts even though they are still convicted of an unlawful killing, i.e., when they are unable to prove perfect self-defense. This Note argues that the extent …

Equality Behind Bars: Improving The Legal Protections Of Transgender Inmates In The California Prison Systems, Angela Okamura

UC Law Journal of Race and Economic Justice

This note examines the failure of federal and California law to protect perhaps its most vulnerable population: transgender prisoners. Although California expresses its concern for the safety and well-being of transgender individuals in other areas of the law, rights for transgender inmates get left in the dust. Transgender inmates are disproportionately likely to be sexually abused in prison, and their safety is not adequately assured under the current state of federal or California law. Currently, when classifying and housing prisoners, officials of the California Department of Corrections and Rehabilitation ("CDCR") are only required to look at factors that point to …

The Intersection Of Intellectual Property And Race In The Twenty-First Century: An Examination Of The Interpretation Of Racial Categories In Patent Law, Tiffany Cruz Gonzalez

UC Law Journal of Race and Economic Justice

The political and jurisprudential treatment of racespecific patents, patents on inventions that are aimed at certain racially or ethnically defined groups, in the United States has the potential to legitimize the reification of race and severely impact society's understanding of racial disparities. Accordingly, with the increase in race-specific patents, and race-based technology in general, the way that the courts will construe racial categories in claim terms will determine the pattern and practice of future race relations in the United States. This note examines the role of a judge and an inventor in the potential litigation of a racespecific patent both …

A Civil Right To Counsel Through The States Using California's Efficiency Project As A Model Toward A Civil Gideon, Brian Brophy

UC Law Journal of Race and Economic Justice

While the United States Supreme Court's decision in Gideon v. Wainwright guaranteed the right to counsel in criminal trials, the poor are often left without representation in civil cases. These cases can have devastating impacts on the poor's access to housing, welfare benefits, children, and more. In 2009, California passed the Sargent Shriver Civil Counsel Act, which created pilot projects that guarantee access to counsel in civil cases for indigent Californians. This note examines how state legislatures can use California's act as a model to expand access to counsel into the civil context. If state officials are shown the dire …

Mission Creep In Military Lawyering, Elizabeth L. Hillman

Faculty Scholarship

No abstract provided.

The Role Of Reporter For A Law Project, Rory K. Little

Faculty Scholarship

No abstract provided.

Aba's Project To Revise The Criminal Justice Standards For The Prosecution And Defense Functions, Rory K. Little

Faculty Scholarship

No abstract provided.

Comparative International Law, Ugo Mattei

Faculty Scholarship

No abstract provided.

Dainty Hands: Perceptions Of Women And Crime In Sherlock Holmes Stories, Hadar Aviram

Faculty Scholarship

No abstract provided.

Restoring Equipoise To Child Welfare, Rebecca Aviel

UC Law Journal

Since the Supreme Court’s widely criticized decision in DeShaney v. Winnebago County Department of Social Services, the principle that the Constitution affords no relief for a social worker’s failure to prevent harm to a child has been described as a “staple of our constitutional law.” Whatever might be said about this principle on its own terms, it produces very troubling incentives for social workers, who may still face constitutional tort liability when they act affirmatively to intervene in troubled families—the unjustified removal of a child from her parents’ custody, after all, is the sort of infringement proscribed by our Constitution’s …

Makes It A Crime For Undocumented Persons To Seek Work While Concealing Their Immigration Status And Also Makes It A Crime For Any Employer To Hire An Undocumented Person Intentionally Or Negligently. Initiative Statute.

Initiatives

Requires all highway patrol, police, sheriffs and other sworn officers to investigate immigration status when they are reasonably suspicious that a person stopped is in the country illegally. Authorizes legal residents to sue any official or agency that adopts or implements policies that limit immigration enforcement, and specifies a $5,000 per day fine and attorneys' fees for violations. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Potentially significant cost savings in services provided to undocumented immigrants by state and local governments and reductions in state and local revenue to the …

War And Peace In The Jury Room: How Capital Juries Reach Unanimity, Scott E. Sundby

UC Law Journal

Using data from the Capital Jury Project, this Article takes a close look inside the jury room at the process by which capital juries reach a unanimous verdict at the penalty phase. The Article first examines the relationship between first ballot voting patterns and the ultimate sentence, then explores the dynamics of group interaction in achieving unanimity. In particular, by using the jurors’ own narratives, the piece delves into the psychological process and arguments through which the majority jurors persuade the holdouts to change their votes. This process is especially intriguing because individual juries do not, of course, have any …

Don’T Forget Due Process: The Path Not (Yet) Taken In § 2254 Habeas Corpus Adjudications, Justin F. Marceau

UC Law Journal

Countless articles and judicial opinions have been devoted to the task of deciphering the scope and application of the limitations on habeas corpus relief announced in the Anti- Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Over the past ten years courts and scholars have developed an intricate framework of analysis for nearly every subsection of § 2254. The decade-long process of interpretation and commentary has been characterized by questions of statutory meaning and federalism that appear to be as irresolvable for courts as they are intriguing to academics. But in the rush to sort out the minutiae of …

Hastings (Fall 2010), Hastings College Of The Law Alumni Association

Hastings Alumni Publications

No abstract provided.