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Corruption And Merit In The African Higher Education System: Legal, Policy And Sociological Reflections, Cristiano D'Orsi

UC Law SF International Law Review

This article analyses, under legal, political, and sociological aspects, the plight of corruption in Higher Education in Africa. On one side, the fight against corruption on the continent seems to use a growing number of legal instruments, at all levels (international, regional, sub-regional and domestic) on the other hand, however, it clashes against rooted traditions and a common mentality that often seem to justify acts of corruption in African academia. Through my work, I shed light on this, at least apparent, dichotomy and to make a synthesis of the various positions that can be found in Africa regarding this sensitive …

Violations Of The Eighth Amendment: How Climate Change Is Creating Cruel And Unusual Punishment, Robert Pistone

UC Law Environmental Journal

As climate change continues to threaten human life on Earth, greenhouse gas emissions are causing more frequent record-setting temperatures and natural disasters. If the current United States prison system does not take steps to address how climate change is affecting the quality of life of its inmates, then imprisonment will be considered cruel and unusual punishment in the near future. In fact, in light of climate change, there is a strong argument that the current treatment of prisoners is already cruel and unusual punishment when other factors are taken into account. This paper focuses on the standards of what conditions …

Institutional Choice For Software Safety Standards, Bryan H. Choi

UC Law Journal

The pursuit of software safety standards has stalled. In response, commentators and policymakers have looked increasingly to federal agencies to deliver new hope. Some place their faith in existing agencies while others propose a new super agency to oversee software-specific issues. This turn reflects both optimism in the agency model as well as pessimism in other institutions such as the judiciary or private markets.

This Essay argues that the agency model is not a silver bullet. Applying a comparative institutional choice lens, this Essay explains that the characteristic strengths of the agency model—expertise, uniformity, and efficiency—offer less advantage than one …

The Law Of Pseudonymous Litigation, Eugene Volokh

UC Law Journal

When may parties in American civil cases proceed pseudonymously? The answer turns out to be deeply unsettled. This Article aims to lay out the legal rules (such as they are) and the key policy arguments, in a way intended to be helpful to judges, lawyers, pro se litigants, and academics.

Behind The Screen: The Constitutionality Of Remote Testimony For Survivors Of Domestic Violence, Rachel Harris

UC Law Constitutional Quarterly

“Before my hearing for my order of protection, I knew that he would try to contact me through other people, send me flowers, send presents to the kids, and all of those things will make me feel powerless when I have to go into court and see him face-to-face. I knew after all of that I would tell the judge that I changed my mind and that I am going to give him another chance. But being on the screen, I tell you, gave me a sense of empowerment. When the judge asked me if I wanted an order of …

Cop-“Like”: The First Amendment, Criminal Procedure, And The Regulation Of Police Social Media Speech, Jonathan Abel

Faculty Scholarship

What happens when a law-enforcement officer makes an offensive comment on social media? Increasingly, police departments, prosecutors, courts, and the public have been confronted with the legal and normative questions resulting from officers’ racist, sexist, and violent social media comments. On one side are calls for severe discipline and termination. On the other are demands that officers be permitted to express their views without fear of retaliation. The regulation of police social media speech has been largely conceived of in First Amendment terms. But because an officer’s comments affect her ability to testify, criminal procedure is also employed in regulating …

Mass Criminalization And Racial Disparities In Conviction Rates, Erin E. Meyers

UC Law Journal

A staggering number of Americans experience criminal justice contact each year, ranging from arrest to long-term incarceration. One 2014 Wall Street Journal report estimated that approximately one in three Americans are represented in the FBI’s master criminal database. Many scholars and commentators have questioned the desirability of mass criminalization and the resulting large-scale arrests.

I add new empirical context to this ongoing discussion by examining conviction rates among a nationally representative sample of young men. I find that, conditional on having been arrested, Black men are 29% less likely than their similarly situated White counterparts to experience conviction. This result …

Trade Secrecy And Innovation In Forensic Technology, Eli Siems, Katherine J. Strandburg, Nicholas Vincent

UC Law Journal

Trade secrecy is a major barrier to public scrutiny of probabilistic software tools that are increasingly used at all stages of the criminal system, from policing and investigation through trial and sentencing. Such tools allow prosecutors to leverage imperfect forensic evidence, such as DNA mixtures, smudged fingerprints, and grainy video footage. Probabilistic software tools unavoidably rely on potentially contestable assumptions, parameters, and implementation choices. Judicially recognized trade secrecy in criminal cases impedes scrutiny of these tools by defendants and the public. Previous critics have focused on secrecy’s potential to undermine the integrity and fairness of the criminal justice system, invoking …

Taking Stock: Open Questions And Unfinished Business Under The Vawa Amendments To The Indian Civil Rights Act, Jordan Gross

UC Law Journal

The primary statutory tool for federal regulation of Tribal court criminal procedure is the Indian Civil Rights Act of 1968 (ICRA). ICRA replicated most of the procedural protections in the Bill of Rights applicable to the States, as then interpreted by the Supreme Court. ICRA also sets out procedures Tribes must extend to criminal defendants in their courts, caps their sentencing authority, and defines their criminal jurisdiction.

Some parts of Indian country are the most dangerous places in the United States today, particularly for indigenous women and girls. They are exposed to a higher level of personal violence than any …

The Green Police In The Golden State: An Analysis Of The Criminal Enforcement Of Environmental Law In The State Of California, Joshua Ozymy, Melissa Jarrell Ozymy

UC Law Environmental Journal

The use of criminal enforcement tools is necessary for deterring and punishing environmental offenses involving significant harm or culpable conduct. Yet we have very limited empirical knowledge of how the criminal enforcement of environmental laws has functioned historically in the Golden State. Through content analysis of prosecution summaries for every federal criminal investigation undertaken by the U.S. Environmental Protection Agency (EPA) in the State of California that led to criminal prosecution, 1983-2019, we are able to provide a comprehensive account of what laws are violated, how prosecutors charge environmental criminals, and how these criminals are sentenced, illustrating broader themes in …

The United States’ Ineffective Response Towards Hong Kong’S National Security Law, Justine Yu

UC Law Journal

The city of Hong Kong has undergone a dramatic political shift in recent years. Once known as a safe haven for freedom of speech and expression,1 HK is now a place where anti-Communist Party views are suppressed under the National Security Law.2 The imposition of national security legislation over HK drew wide criticism from Western nations and pro-Democracy activists. This Note will focus specifically on the United States’ response and critique its shortcomings in response to the NSL. Because the current U.S. approach fails to achieve its desired outcome of upholding HK autonomy and democracy, this Note will also set …

Faithful Execution In The Fifty States, Zachary Price

Faculty Scholarship

Amid heightened political conflict over criminal-justice policy, norms surrounding prosecutorial discretion have shifted rapidly. Under the prior mainstream approach, prosecutors exercised broad charging discretion, but generally did so tacitly and in case-by-case fashion out of deference to statutory law’s primacy. Under an emerging alternative approach, associated for the moment with progressive politics, prosecutors categorically and transparently suspend enforcement of laws they consider unjust or unwise. The federal government under President Obama employed this theory in high-profile policies relating to marijuana crimes, as well as immigration and the Affordable Care Act. More recently, a number of self-described “progressive prosecutors” have employed …

Practical Considerations In Starting And Operating An Academic Low-Income Taxpayer Clinic, Minoj Viswanathan, Amy Spivey

Faculty Scholarship

Low-income taxpayer clinics (“LITCs”) provide legal assistance to underserved clients with active federal tax controversies, conduct educational outreach to low-income and English-as-a-second-language taxpayers, and work to ensure the fairness and integrity of the tax system. Despite the availability of IRS grant funding for LITCs and the alignment of LITC goals with the core values that underlie clinical legal education, a relatively small percentage of U.S. law schools currently operates an LITC. Moreover, many law school LITCs have closed within the past ten years, demonstrating that, even if started, academic LITCs are challenging to sustain. This Article incorporates the authors’ experiences …

Punitive Surveillance, Kate Weisburd

Faculty Scholarship

Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance—such as GPS-equipped ankle monitors, smartphone tracking, and suspicionless searches of electronic devices—is often touted as a humane substitute for incarceration. This type of monitoring, which I term “punitive surveillance,” allows government officials, law enforcement, and for-profit companies to track, record, search, and analyze the location, biometric data, and other meta-data of thousands of people on probation and parole. With virtually no legal oversight or restraint, punitive surveillance deprives people …

Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser

Faculty Scholarship

Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …

Death By Dehumanization: Prosecutorial Narratives Of Death-Sentenced Women And Lgbtq Prisoners, Jessica Sutton, John Mills, Jennifer Merrigan, Kristin Swain

Faculty Scholarship

No abstract provided.

Cop Tracing, Jonathan Abel

Faculty Scholarship

What happens to an officer’s old cases when that officer is exposed as corrupt? Often, the answer is nothing. This Article calls for “cop tracing”: an effort to identify and investigate the past cases handled by dishonest cops. The Article first describes the existing action and inaction with respect to such tracing. Next, it examines the logistical and legal barriers to cop tracing. Finally, the Article considers the implications of cop tracing’s absence. The failure to engage in cop tracing is symptomatic of the failure to see the misconduct of even a single bad officer in systemic terms.

The House Always Wins: Doctrine And Animus In California’S Covid-19 Prison Litigation, Hadar Aviram

Faculty Scholarship

No abstract provided.

A Call For An Intersectional Feminist Restorative Justice Approach To Addressing The Criminalization Of Black Girls, Thalia Gonzalez, Donna Coker

Faculty Scholarship

No abstract provided.

A Health Justice Response To School Discipline And Policing, Thalia Gonzalez, Alexis Etow, Cesar De La Vega

Faculty Scholarship

Inequities in school discipline and policing have been long documented by researchers and advocates. Longitudinal data is clear that Black, Indigenous, people of color (BIPOC) students are punished and policed at higher rates than their white classmates. For students who have disabilities, especially those with intersectional identities, the impact of school discipline and policing is amplified, with disparities existing at some of the highest rates across multiple categories. And this disproportionality has not diminished during short- and long-term school closures resulting from the COVID-19 pandemic. In fact, schools have employed new models of exclusion in the pandemic setting that operate …

Race, Public Health, And The Epidemic Of Incarceration, Thalia Gonzalez, Emma Kaeser

Faculty Scholarship

No abstract provided.

Dosing Discrimination: Regulating Pdmp Risk Scores, Jennifer D. Oliva

Faculty Scholarship

Prescription drug monitoring program (PDMP) predictive surveillance platforms were designed for-and funded by-law enforcement agencies. PDMPs use proprietary algorithms to determine a patient's risk for prescription drug misuse, diversion, and overdose. The proxies that PDMPs utilize to calculate patient risk scores likely produce artificially inflated scores for marginalized patients, including women and racial minorities with complex, pain­ related conditions; poor, uninsured, under-insured, and rural individuals; and patients with co-morbid disabilities or diseases, including substance use disorder and mental health conditions. Law enforcement conducts dragnet sweeps of PDMP data to target providers that the platform characterizes as "overprescribers" and patients that …

The Influence Of White Exceptionalism On Drug War Discourse, Jennifer D. Oliva, Taleed El-Sabawi

Faculty Scholarship

No abstract provided.

The New Racial Wage Code, Veena Dubal

Faculty Scholarship

The legal identity of on-demand platform workers has become a central site of conflict between labor and industry. Amidst growing economic inequality, labor representatives and workers have demanded that platform workers be afforded em­ ployee benefits and protections, including minimum wage and overtime rights. Plat­ form industrialists, meanwhile, have proffered a new regulatory category of worker­ neither employee nor independent contractor-that limits the protections available to the workforce, legalizes unpredictable, digitally-personalized piece-pay, and con­ stricts a worker's right to negotiate different terms. To date, legal and socio-legal scholars have primarily analyzed this third category of worker, codified by Proposi­ tion …

Critical Race Feminism, Health, And Restorative Practices In Schools: Centering The Experiences Of Black And Latina Girls, Thalia Gonzalez, Rebecca Epstein

Faculty Scholarship

Restorative practices (RP) in K-12 schools in the United States have grown exponentially since the early 1990s. Developing against a backdrop of systemic racism, RP has become embedded in educa- tion practice and policy to counteract the harmful and persistent patterns of disparities in school discipline experienced by students of color. Within this legal, social, and political context, the em- pirical evidence that has been gathered on school-based restora- tive justice has framed and named RP as a behavioral interven- tion aimed at reducing discipline incidents—that is, an “alternative” to punitive and exclusionary practices. While this view of RP is …

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 …

Public Undersight, Christina Koningisor

Faculty Scholarship

No abstract provided.

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 …

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 …

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. …