California Law Review最新文献

{"title":"Eleanor Swift as Consummate Colleague","authors":"A. O'Connell","doi":"10.15779/Z38SF2MB35","DOIUrl":"https://doi.org/10.15779/Z38SF2MB35","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67548888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“locked together / in this small hated space”: Recognizing and Addressing Intimate Partner Violence Between Incarcerated Women","authors":"Emma Mclean-Riggs","doi":"10.15779/Z388S4JP42","DOIUrl":"https://doi.org/10.15779/Z388S4JP42","url":null,"abstract":"Intimate partner violence between incarcerated women has been largely invisible in legal scholarship and advocacy work. This Note attempts to assess the incidence and quality of intimate partner violence between incarcerated women from the incomplete and occasionally biased available data and then examines potential methods for reducing such violence. Considering several of the legal strategies that address intimate partner violence, this Note concludes that while facilitating women’s escape from their abusive partners and civil protection orders may be effective strategies for intervening in violence between incarcerated women, mandatory reporting structures and no-drop prosecution policies are ill-suited to the prison context.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67428028","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Agencies as Adversaries","authors":"D. Farber, A. O'Connell","doi":"10.15779/Z38H12V721","DOIUrl":"https://doi.org/10.15779/Z38H12V721","url":null,"abstract":"Conflict between agencies and outsiders — whether private stakeholders, state governments, or Congress — is the primary focus of administrative law. But battles also rage within the administrative state: federal agencies, or actors within them, are the adversaries. Recent examples abound, such as the battle between the Federal Bureau of Investigation and the Department of Defense over hacking the iPhone of one of the San Bernandino shooters, the conflict between the State Department and the Central Intelligence Agency over classifying some aspects of Hillary Clinton’s emails, and the sharp conflict between the Republican and Democratic members of the Federal Communications Commission on net neutrality. This Article draws on rich institutional accounts to illuminate and classify the plethora of agency conflict and dispute resolution mechanisms. Then, by applying social scientific work on agency and firm design as well as constitutional theory, we aim to explain the creation of such conflict, largely by Congress and the White House but sometimes by the courts, and also evaluate its desirability. We assess the characteristics of conflict against economic, political, and philosophical criteria to suggest lessons for institutional design in the modern administrative state. In contrast to much of the existing literature, we focus on the potentially positive contribution of agency conflict to effective democratic governance.Finally, we use our descriptive, positive, and normative work on agency conflict to contribute to long-standing legal debates and to flag important legal issues that have generated little attention. For instance, we investigate the constitutional limits of congressionally or judicially created conflict within the Executive Branch, the application of deference doctrines when agencies disagree in the administrative record, and the ability of agencies to take conflicting positions directly or indirectly in the courts themselves.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67479220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Gerken’s Federalism 3.0: Better or Worse Than It Sounds?","authors":"R. Cooter","doi":"10.15779/Z38513TW0P","DOIUrl":"https://doi.org/10.15779/Z38513TW0P","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67402191","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Multiracial Option: A Step in the White Direction","authors":"A. Phillips","doi":"10.15779/Z38H98ZD1S","DOIUrl":"https://doi.org/10.15779/Z38H98ZD1S","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67480653","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age","authors":"C. Westmoreland","doi":"10.2139/SSRN.3053295","DOIUrl":"https://doi.org/10.2139/SSRN.3053295","url":null,"abstract":"This Note analyzes how current statutory schemes omit protection of intangible Tribal cultural property, and how the current push for digitization of library and museum collections exacerbates infringement and appropriation. Cultural property includes any sacred traditional knowledge essential to tribal way of life, and is often privileged information. Thus, intangible cultural property is easily likened to intellectual property in import, but dos not share the same policy rationale. Because intellectual property laws are justified using “incentive-creation” and other utilitarian theories, these laws inadequately protect tribal images, sacred songs, and other types of traditional knowledge. Meanwhile, statutory schemes specific to cultural property focus solely on tangible sacred objects such as ceremonial and funerary regalia. This leaves items such as photographs, notes, and recordings, which contain culturally sensitive information exposed to outsiders and ripe for infringement. In order to remedy this harm, Congress should fulfill its fiduciary obligation to tribes by enacting laws that would incentivize libraries, museums, and other educational entities to negotiate with tribes to license or repatriate intangible cultural property prior to digitization.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68518050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Foxes at the Henhouse: Occupational Licensing Boards Up Close","authors":"R. Allensworth","doi":"10.15779/Z38CJ87K75","DOIUrl":"https://doi.org/10.15779/Z38CJ87K75","url":null,"abstract":"The dark side of occupational licensing—its tendency to raise prices to consumers with dubious effects on service quality, its enormous payout to licensees, and its ability to shut many willing workers out of the workforce—has begun to receive significant attention. But little has been said about the legal institutions that create and administer this web of professional entry and practice rules. State-level licensing boards regulate nearly one-third of American workers, yet, until now, there has been no systematic attempt to understand who serves on these boards and how they operate. This Article undertakes an ambitious and comprehensive study of all 1,790 licensing boards in the U.S. and identifies their statutory membership. The results are clear: nearly all of them are controlled by professionals holding a license issued by the board itself.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67450288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Federalism 3.0","authors":"H. Gerken","doi":"10.15779/Z38RR1PM64","DOIUrl":"https://doi.org/10.15779/Z38RR1PM64","url":null,"abstract":"to the concrete. They don't have to talk about how a policy would work in theory. They can show how it does work in practice. Better yet, it allows advocates of change to build their movement one step a time. It is hard to jumpstart a national movement. That's why virtually every national movement began as a local one.7 Equality movements of all sorts began small and grew into something bigger. And precisely because the federal government depends so heavily on states to carry out its policies, states can exercise unexpected sway over national policymaking as well. In sum, while rights and structure have long been cast in opposition to one another, in fact rights and structure serve as interlocking gears in a disaggregated democracy: the First Amendment and federalism working in tandem to move debates forward. Debate leads to policy, which in turn provides a rallying point for still more debate. Social movements include pragmatic insiders, forging bargains from within, and principled outsiders, demanding more and better from without. The egalitarian benefits associated with decentralization are particularly salient these days because of the inherent limits of rights frameworks. A rights framework can guarantee the right to vote; it's much less helpful in raising voter turnout. Constitutional rights do a better job of combatting state-mandated school segregation than preventing the private choices that lead to residential segregation. Courts can ensure vulnerable populations have a right to counsel but they are less suited to monitoring prosecutorial discretion or police training. Our rights tradition, at least, can deter the most obvious forms of employment discrimination, but it cannot guarantee a robust minimum wage, and it's poorly suited to beating back the effects of implicit bias or structural discrimination. Many equality fights-including those to change social norms-are being waged through our policymaking apparatus rather than our Constitution. Here again, federalism and localism play an important role. National policy, after all, is a giant gear to move. As with a clock, you need movement from lots of small, interlocking gears to move a bigger one. For those committed, as I am, to a wellenforced, national equality regime, it's useful to remember that decentralization can beget centralization. Unfortunately, both sides have overlooked the democratic possibilities associated with today's federalism. Nationalists have a bad habit of conflating \"Our Federalism\" with our father's federalism, when state sovereignty loomed large. Given their emphasis on national politics and national norms, they have 76. For a fuller account, see Gerken, Dissenting by Deciding, supra note 70, at 1763-65. 77. This idea may even undergird Romer v. Evans, 517 U.S. 620 (1996), the first gay-rights victory at the Supreme Court. See, e.g., Nicholas S. Zeppos, The Dynamics of Democracy: Travel, Premature Predation, and the Components ofPolitical Identity, 50 VAND. L. ","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67541900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity","authors":"Jeremy Isard","doi":"10.15779/Z38NS0KX20","DOIUrl":"https://doi.org/10.15779/Z38NS0KX20","url":null,"abstract":"This Note examines the adoption of two psychological risk assessment protocols used on “lifers” by the California Board of Parole Hearings in preparation for parole suitability hearings. Probation and parole agencies employ risk assessment protocols across state and federal jurisdictions to measure the likelihood that an individual will pose a danger to society if released from prison. By examining the adoption and recent reformulation of risk assessment protocols in California, this Note considers some of the myriad demands that courts and administrative agencies place on brain science. Applying the California parole process as a parable of such pressures, this Note argues that brain science has a unique capacity to supersede legal inquiry itself, and thus should only be used in legal and administrative settings with extreme caution.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67515479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Criminal Behavior as an Expression of Identity and a Form of Resistance: The Sociolegal Significance of the Hawaiian Cockfight","authors":"K. Young","doi":"10.15779/Z38SG3H","DOIUrl":"https://doi.org/10.15779/Z38SG3H","url":null,"abstract":"This article analyzes the sociolegal significance of a highly localized form of illegal behavior: the Hawaiian cockfight. Drawing on ethnographic data gathered at illegal cockfights in Hawaii, as well as in-depth confidential interviews of cockfighters, this article depicts the activity as it occurs on the ground, from the fighters’ perspective. The men who engage in cockfighting derive at least two meanings from the illegal activity. First, cockfighting expresses a man’s central identity as a Hawaii “local,” embodying a positive cultural assertion that honors cockfighters’ family histories and establishes a man’s value as an intelligent, trustworthy member of his community. Second, in the throes of legal, economic, and demographic changes to Hawaii, cockfighting has taken on an important meaning as a “resistance” activity that stands in opposition to these developments, particularly because of the pervasive sense of futility that locals tend to experience when they interact with the legal system. These two purposes, identity and resistance, are opposite sides of the same coin. In asserting local identity, cockfighters are able to communicate who they are; in resisting changes, they are able to communicate who they are not. This article also argues for the importance of considering local","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2016-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67549430","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}