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Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell Jan 2019

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell

Faculty Scholarship

This Article examines the possible racial and ethnic implications of California’s expansive death penalty statute in light of the Eighth Amendment’s requirement that each state statute narrow the subclass of offenders on whom a death sentence may be imposed. The narrowing requirement derives from the holding in Furman v. Georgia over forty-five years ago, when the U.S. Supreme Court ruled that existing death penalty statutes violated the Eighth Amendment’s prohibition against cruel and unusual punishments. Citing statistics demonstrating arbitrary and capricious application of capital punishment, a majority of the Justices concluded that a death sentencing scheme ...


How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen Jan 2018

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Faculty Scholarship

From the moment Donald Trump was elected president, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed – dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.

This Article calls attention to that latent instability and, in ...


Interbank Discipline, Kathryn Judge Jan 2013

Interbank Discipline, Kathryn Judge

Faculty Scholarship

As banking has evolved over the last three decades, banks have become increasingly interconnected. This Article draws attention to an effect of this development that has important policy ramifications yet remains largely unexamined – a dramatic rise in interbank discipline. The Article demonstrates that today's large, complex banks have financial incentives to monitor risk taking at other banks, They also have the infrastructure, competence, and information required to be fairly effective monitors and mechanisms through which they can respond when a bank changes its risk profile. Interbank discipline thus affects bank risk taking, discouraging banks from taking some types of ...


Private Equity And Executive Compensation, Robert J. Jackson Jr. Jan 2013

Private Equity And Executive Compensation, Robert J. Jackson Jr.

Faculty Scholarship

After the financial crisis, Congress directed regulators to enact new rules on C EQ pay at public companies. The rules would address the possibility that directors of public conpani es put ranagers'interests ahead of shareholderswhen setting executive pay. Yet little is known about how CEOs are paid in companies whose directors have undivided loyalty to shareholders. These directors car be fbund in companies owned by private equity firms-the savvy investors long renowned for their ability to maximize shareholier value. this Artic. presents the first study of how CEO pay in companies owned by private equity firms differs from CEO ...


From Private Violence To Mass Incarceration: Thinking Intersectionally About Women, Race, And Social Control, Kimberlé W. Crenshaw Jan 2012

From Private Violence To Mass Incarceration: Thinking Intersectionally About Women, Race, And Social Control, Kimberlé W. Crenshaw

Faculty Scholarship

The structural and political dimensions of gender violence and mass incarceration are linked in multiple ways. The myriad causes and consequences of mass incarceration discussed herein call for increased attention to the interface between the dynamics that constitute race, gender, and class power, as well as to the way these dynamics converge and rearticulate themselves within institutional settings to manufacture social punishment and human suffering. Beyond addressing the convergences between private and public power that constitute the intersectional dimensions of social control, this Article addresses political failures within the antiracism and antiviolence movements that may contribute to the legitimacy of ...


Sticky Intuitions And The Future Of Sexual Orientation Discrimination, Suzanne B. Goldberg Jan 2010

Sticky Intuitions And The Future Of Sexual Orientation Discrimination, Suzanne B. Goldberg

Faculty Scholarship

As once-accepted empirical justifications for discriminating against lesbians and gay men have fallen away, the major stumbling block to equality lies in a set of intuitions, impulses, and so-called common sense views regarding sexual orientation and gender. This Article takes up these impulses and views, which I characterize as "sticky intuitions," to consider both their sustained influence and the prospects for their destabilization. In this effort, I first offer a framework for locating the intuitions' work within contemporary doctrine, culture, and politics. I then advance an extended typology of the intuitions themselves, drawing from case law, scholarly literature, and public ...


Seeing And Believing: Mandatory Ultrasound And The Path To A Protected Choice, Carol Sanger Jan 2008

Seeing And Believing: Mandatory Ultrasound And The Path To A Protected Choice, Carol Sanger

Faculty Scholarship

Several state legislatures now require that before a woman may consent to an abortion, she must first undergo an ultrasound and be offered the image of her fetus. The justification is that without an ultrasound, her consent will not be fully informed. Such legislation, the latest move in abortion regulation, supposes that a woman who sees the image will be less likely to abort. This Article explores how visual politics has combined with visual technology, and how law has seized upon both in a campaign to encourage women to choose against abortion. While rarely analyzed, the significance of seeing, or ...


Just Until Payday, Ronald J. Mann, Jim Hawkins Jan 2007

Just Until Payday, Ronald J. Mann, Jim Hawkins

Faculty Scholarship

The growth of payday lending markets during the last fifteen years has been the focus of substantial regulatory attention both in the United States and abroad, producing a dizzying array of initiatives by federal and state policymakers. Those initiatives have had conflicting purposes – some have sought to remove barriers to entry while others have sought to impose limits on the business. As is often the case in banking markets, the resulting patchwork of federal and state laws poses a problem when one state is able to dictate the practices of a national industry. For most of this industry's life ...


Remembering Gary – And Tort Theory, George P. Fletcher Jan 2002

Remembering Gary – And Tort Theory, George P. Fletcher

Faculty Scholarship

Tort theory has had a brief but wondrous history. Los Angeles and the UCLA School of Law lie at the core of that history – much more, I am sure, than is likely to be remembered.


Unemployment Insurance And Wealth Redistribution, Gillian Lester Jan 2001

Unemployment Insurance And Wealth Redistribution, Gillian Lester

Faculty Scholarship

This Article evaluates the merit of liberalizing unemployment insurance eligibility as a means to achieve progressive wealth redistribution-an idea that has recently gained popularity among policymakers and legal scholars. Unemployment insurance (UI) provides temporary, partial wage replacement to workers who suffer unexpected job loss, but it tends to exclude workers who have very low wages or hours of work, or who quit for reasons considered "personal" (for example, to accommodate family demands). Professor Lester argues that while redistribution to workers who are poor or who have caregiving obligations is a desirable goal, expanding UI is a poor way to do ...


The First Decade: Critical Reflections, Or A Foot In The Closing Door, Kimberlé W. Crenshaw Jan 2001

The First Decade: Critical Reflections, Or A Foot In The Closing Door, Kimberlé W. Crenshaw

Faculty Scholarship

In the introduction to Critical Race Theory: The Key Writings That Formed the Movement, Gary Peller, Neil Gotanda, Kendall Thomas, and I framed the development of Critical Race Theory (CRT) as a dialectical engagement with liberal race discourse and with Critical Legal Studies (CLS). We described this engagement as constituting a distinctively progressive intervention within liberal race theory and a race intervention within CLS. As neat as this sounds, it took almost a decade for these interventions to be fleshed out fully. Reflecting on the past ten years of CRT, this Article explores the course of these interventions from the ...


The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke Jan 2000

The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Katherine Franke offers an analysis on Richard Delgado and Jean Stefancic's California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education and Rebecca Tsosie's Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights. These two Articles, she observes, deploy history for the purposes of justifying certain contemporary normative claims on behalf of peoples of color: affirmative action in higher education for Delgado and Stefancic, and sovereignty rights for native peoples in Tsosie's case. Franke explores the manner in which stories of past conquest and discrimination contribute to contemporary ...


Opening Remarks: Reclaiming Yesterday's Future, Kimberlé W. Crenshaw Jan 2000

Opening Remarks: Reclaiming Yesterday's Future, Kimberlé W. Crenshaw

Faculty Scholarship

Good morning colleagues, friends, and special guests of the Symposium. I have the unenviable task of welcoming you to the UCLA School of Law this morning, a task that under current circumstances carries with it for me quite a few mixed emotions.' I have struggled mightily over how I might convey to you that although my heart is heavy this morning, I am very pleased to see each of you. It is rather like opening the door to welcome close friends into your home which is in a state of utter disarray. Things are strewn all about, you look harried ...


Disenfranchisement As Punishment: Reflections On The Racial Uses Of Infamia, George P. Fletcher Jan 1999

Disenfranchisement As Punishment: Reflections On The Racial Uses Of Infamia, George P. Fletcher

Faculty Scholarship

The practice of disenfranchising felons, though decreasing, is still widespread. In this Article, Professor George Fletcher reflects on the use of disenfranchisement as punishment, the lack of a convincing theoretical justification for it, and its disproportionate impact on the African.American community. Fletcher presents a number of powerful arguments against the constitutionality of the practice, but he emphasizes that there is a deeper problem with disenfranchisement as punishment: It reinforces the branding of felons as an "untouchable" class and thus helps to prevent their effective reintegration into our society.


The Contradictions Of Mainstream Constitutional Theory, Kimberlé W. Crenshaw, Gary Peller Jan 1998

The Contradictions Of Mainstream Constitutional Theory, Kimberlé W. Crenshaw, Gary Peller

Faculty Scholarship

For the last four decades, some form of "process" theory has dominated conventional constitutional theory, on the bench and in the academy. The organizing, usually implicit, background assumption is that the exercise of governmental power – whether by legislatures or courts – is to be tested for normative legitimacy against a set of procedures. Writing as critics of the basic framework of process theory, Professors Kimberli Crenshaw and Gary Peller discuss the contributions and constraints of a proceduralist constitutional law discourse. In light of direct democracy initiatives claiming the power of legislation, and a substantively conservative judiciary defining the "law," Professors Crenshaw ...


Federal Criminal Law, Congressional Delegation, And Enforcement Discretion, Daniel Richman Jan 1998

Federal Criminal Law, Congressional Delegation, And Enforcement Discretion, Daniel Richman

Faculty Scholarship

Much of the literature on federal criminal law bemoans the extent to which Congress has abdicated its legislative responsibilities and left enforcement decisions to prosecutorial discretion. Many critics have sought to compensate for the absence of appropriate legislative specificity by proposing other devices for limiting prosecutorial power, many of which would centralize enforcer authority. Guided by recent work in positive political theory, Professor Daniel Richman argues that such claims of legislative abdication overlook the attention that Congress has given to the organization and activities of the federal enforcement bureaucracy. By showing the extent to which Congress balances concern with enforcer ...


Searching For Negotiability Payment And Credit Systems, Ronald J. Mann Jan 1997

Searching For Negotiability Payment And Credit Systems, Ronald J. Mann

Faculty Scholarship

The casual observer of the legal academy would assume that negotiability is a legal principle of foundational importance to our nation's payment and credit systems. All of the obvious indicators support that assumption. Among other things, the 1980s witnessed a major effort by the American Law Institute and the National Conference of Commissioners on Uniform State Laws to update and revise the relevant provisions of the Uniform Commercial Code. Similarly, negotiability continues to occupy a safe position in law school curricula, as prominent academics at our most elite schools continue to write casebooks focusing on negotiability. Most recently, for ...


Revisiting Overton Park: Political And Judicial Controls Over Administrative Actions Affecting The Community, Peter L. Strauss Jan 1992

Revisiting Overton Park: Political And Judicial Controls Over Administrative Actions Affecting The Community, Peter L. Strauss

Faculty Scholarship

Overton Park is a 342-acre municipal park lying close to downtown Memphis, Tennessee, in one of that city's better residential areas. Citizens to Preserve Overton Park, Inc. v. Volpe is a Supreme Court decision frequently cited for its general propositions about judicial review of informal administrative action that, to the citizens of Memphis, was one way-station in a more than two-decade struggle concerning whether and where an inner-city expressway, part of Interstate 40, would be built. Overall, the story of that struggle reveals a complex brew of national and local politics about the marriage of highway convenience to urban ...


Social-Republican Property, William H. Simon Jan 1992

Social-Republican Property, William H. Simon

Faculty Scholarship

Economic democracy is the idea that the norms of equality and participation that classical liberalism confines to a narrowly defined sphere of government should apply to the sphere of economic life. Economic democracy thus entails a challenge to the classical liberal notion of property. In classical liberalism, property defines a realm of private enjoyment. No particular property right is a prerogative of, or a prerequisite to, citizenship, and the exercise of property rights by those who have them is not assessed in political terms.

One alternative to classical liberalism responsive to the ideal of economic democracy is classical socialism. Classical ...


Wealth And Property, Thomas W. Merrill Jan 1990

Wealth And Property, Thomas W. Merrill

Faculty Scholarship

Professor Stephen Munzer's study of property rights is an ambitious work. Drawing on sources as diverse as Hohfeld, Hegel, Locke, civic republicanism, Marx, the classic utilitarians, and Rawls, he seeks to develop a "pluralist" theory of property, one that synthesizes a variety of philosophical perspectives into a single "basic theory" that can be used to assess and promote the reform of different property systems. Like most attempts to achieve a grand philosophical synthesis, however, this one ultimately fails. The most obvious problem is that Munzer's basic theory is too vague and unwieldy to generate determinate answers to the ...


Bargaining In The Shadow Of Eminent Domain: Valuing And Apportioning Condemnation Awards Between Landlord And Tenant, Victor P. Goldberg, Thomas W. Merrill, Daniel Unumb Jan 1987

Bargaining In The Shadow Of Eminent Domain: Valuing And Apportioning Condemnation Awards Between Landlord And Tenant, Victor P. Goldberg, Thomas W. Merrill, Daniel Unumb

Faculty Scholarship

Who has a constitutionally protected "property" interest when the government condemns land subject to a lease? Is it the landlord? The tenant? Or do both parties have property rights that entitle them to compensation? Further, how should the size of the total condemnation award be determined? Should we value the property rights of the landlord and the tenant separately and sum? Or should we value the entire parcel as if it were an undivided fee simple and apportion the award between the landlord and the tenant? If the condemnation award is based on the value of a fee simple and ...


Should Intolerable Prison Conditions Generate A Justification Or An Excuse For Escape?, George P. Fletcher Jan 1979

Should Intolerable Prison Conditions Generate A Justification Or An Excuse For Escape?, George P. Fletcher

Faculty Scholarship

In the last five years, appellate courts have responded sympathetically to the claims of prisoners who have escaped to avoid the threat of physical violence and homosexual rape. Lovercamp began the trend in 1974. Today the reports are replete with reversals directing trial courts to hear evidence bearing on the conditions that prompted the escape.

The courts have moved so quickly into this new field that they have had little chance to refine the underlying rationale for admitting the evidence. Appellate opinions, as well as several commentators, have sought to squeeze the new issue into one of three received doctrinal ...


The Right Deed For The Wrong Reason: A Reply To Mr. Robinson, George P. Fletcher Jan 1975

The Right Deed For The Wrong Reason: A Reply To Mr. Robinson, George P. Fletcher

Faculty Scholarship

So far as there is a school of criminal theory in the United States, it is a school devoted to sifting and celebrating the purposes of the criminal law. Discussions in the literature are dominated by endless recitals of the deterrent, rehabilitative and retributive functions of criminal sanctions. The orthodox view is that all of these purposes are relevant and that any proposed rule of criminal law must be measured by its tendency to further one or all of these goals. If the issue is punishing negligence, for example, the standard mode of analysis is to ask whether punishing negligent ...


The Presumption Of Innocence In The Soviet Union, George P. Fletcher Jan 1968

The Presumption Of Innocence In The Soviet Union, George P. Fletcher

Faculty Scholarship

The presumption of innocence is a curious item in the baggage of Western legal rhetoric. Revered today here and abroad, it has become a standard clause in international testimonials to the rights of man. Yet, at first blush, it seems conceptually anomalous and irrelevant in practice. It is hardly a presumption of fact – a distillation of common experience; statistics betray the suggestion that men indicted on criminal charges are likely to be innocent. Nor is it a legal rule masquerading as an irrebuttable presumption; it is rebuttable by proof beyond a reasonable doubt of the defendant's guilt. Further, it ...