California Law Review最新文献

{"title":"The Case for a Trial Fee: What Money Can Buy in Criminal Process","authors":"Darryl K. Brown","doi":"10.15779/Z38D50FZ0D","DOIUrl":"https://doi.org/10.15779/Z38D50FZ0D","url":null,"abstract":"Money motivates and regulates criminal process. Conscious of adjudication costs, prosecutors incentivize guilty pleas with the prospect of a “trial penalty”—harsher post-trial sentences. Budgetary considerations motivate revenue-generating enforcement policies and asset forfeitures by law enforcement. States also charge defendants directly for nearly every criminal justice expense through mandatory fees, which can burden decisions to exercise rights. Additionally, defendants can pay for optional advantages. Right-to-counsel doctrine protects the right to pay for more and better legal assistance than the state is obligated to provide. Paying bail yields pretrial liberty. Diversion programs, for a fee, can supplant ordinary prosecution. Some defendants can choose their sentence—a fine or jail. But these opportunities are not available to all; their costs need not match one’s ability to pay. To examine roles and rules of money in criminal process, this paper considers the case for an optional criminal trial fee. Defendants who pay it would directly cover public litigation costs, which would leave the state indifferent, as a budgetary matter, between trials and guilty pleas. In return, defendants would get a penalty-free trial limited to the terms of a proffered plea bargain. The fee proves a useful device because its rationale and effects accord with entrenched precedents and policies, not least in how it extends the justice system’s differential treatment based on wealth. Yet the trial fee also promises positive effects. It would reduce prosecutors’ most-criticized bargaining tactics—excessively harsh trial penalties—without undermining bargaining’s important secondary functions, enlisting informants to cooperate and rewarding defendants who accept responsibility for their crimes. And even a modest increase in fee-financed trials would yield other benefits, such as citizen participation in applying criminal law and supervising government officials, and more data about “the shadow of trial” in which bargaining takes place","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43740838","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":"Dicey's Nightmare: An essay on the rule of law","authors":"James E. Pfander","doi":"10.15779/Z383N20F1W","DOIUrl":"https://doi.org/10.15779/Z383N20F1W","url":null,"abstract":"The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Essay builds on Dicey by offering a comparative assessment of military encroachments on the rights of the nation’s citizens during times of war. Rather than comparing British common-law norms to European constitutionalism, as Dicey did, this Essay compares nineteenth-century common law as applied in the courts of the United States to the constitutionally-inflected rules that those courts apply today. \u0000 \u0000This Essay focuses its comparison on three common-law remedies: habeas to secure release from military detention; trespass to obtain an award of damages for wrongful or abusive military confinement; and tort and contract-based compensation for the military’s destruction or taking of property. The modern Supreme Court has recalibrated each of these common-law regimes and now evaluates the legality of the military’s actions almost exclusively in constitutional terms. As Dicey might have predicted, the shift away from hard-edged common-law rules to open-ended constitutional balancing corresponds to a marked loss of relative remedial effectiveness. This Essay examines some of the factors that have shaped the remedial decline, as reflected in Hamdi v. Rumsfeld and Ziglar v. Abbasi. It then offers suggestions as to how the Court might keep the infrastructure of rights enforcement in better repair.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47255137","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 Constitutionalization of Disparate Impact—Court-Centered and Popular Pathways: A Comment on Owen Fiss’s Brennan Lecture","authors":"Reva B. Siegel","doi":"10.15779/Z380V89H66","DOIUrl":"https://doi.org/10.15779/Z380V89H66","url":null,"abstract":"Responding to Owen Fiss’s call for the Court to recognize the constitutional status of the Griggs principle, I question court-centered accounts of constitutional change and examine the constitutional development of disparate impact law inside and outside of the courts. To illustrate the important role that democratic actors have played in shaping the development of disparate impact law, I sample conflict over disparate impact standards across all three branches of the federal government since the 1970s, from the Burger Court to the Roberts Court, in Congress, and in the Reagan, Obama, and Trump administrations. \u0000 \u0000Examining disparate impact’s history reminds us that on numerous occasions, Congress has proven more willing than the Court to protect minority rights. Further, this account shows that constitutionalization of disparate impact could take forms that Fiss does not anticipate, given conservative opposition to the use of disparate impact standards to combat race discrimination (as distinct from discrimination on the basis of religion or disability). Fiss argues that a Court in the coming decades could interpret the Equal Protection Clause to require judges to review the racially disparate impact of state action. The history I consider suggests that constitutionalization might instead take the form of a Court interpreting the Equal Protection Clause to prohibit or limit federal laws mandating such review — a prospect that grows with the shifting composition of the Court and growing hostility to disparate impact in the Trump administration. \u0000 \u0000This Comment makes the case for a dialogic understanding of our constitutional law primarily on grounds of descriptive accuracy. Situating the Court’s work in dialogue with democratic actors supplies a better understanding of how our law has evolved and is likely to evolve in the coming decades. But I close by offering a brief, normative account that suggests why conflict strengthens our constitutional law. When properly constrained, constitutional conflict can give democratic authority and direction to constitutional law.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49273802","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":"A Profoundly Masculine Act: Mass Shootings, Violence Against Women, and the Amendment That Could Forge a Path Forward","authors":"Y. Issa","doi":"10.15779/Z382V2C98F","DOIUrl":"https://doi.org/10.15779/Z382V2C98F","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67386911","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":"Disenfranchisement in the US Presidential Nomination Process Through Caucuses and the Gatekeeping Role of Iowa and New Hampshire","authors":"Thomas C. Dec","doi":"10.15779/Z38901ZG3D","DOIUrl":"https://doi.org/10.15779/Z38901ZG3D","url":null,"abstract":"This Note examines inequities in the presidential nomination process. The nomination process has developed such that African American and women voters, compared to white male voters, wield less influence over which candidates parties nominate. By examining data from recent elections and scholarship from the fields of law, political science, and economics, this Note illuminates the extent of voter disenfranchisement and argues that parties must eliminate the use of caucuses and demote Iowa and New Hampshire from their role as gatekeepers of the nomination process.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67429514","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":"Constructive constitutional history and habeas corpus today","authors":"James E. Pfander","doi":"10.15779/Z38XW47W75","DOIUrl":"https://doi.org/10.15779/Z38XW47W75","url":null,"abstract":"In her book, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, Professor Amanda Tyler has written a definitive constitutional history of the habeas privilege in the United States.1 Rather than rehearsing the book’s many virtues, I propose to devote this short Essay to the familiar yet intractable problem of historical translation. The problem of how to translate the lessons of history into modern constitutional law remains largely unresolved.2 True, almost everyone would agree with originalists that history can help answer some modern interpretive questions.3 But just about everyone also recognizes that relevant history does not always point in one direction: well-informed observers may dispute the historical meaning of a constitution’s text, and their views may conflict with the way the","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67588923","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 United Nations Mechanism on Syria: Will the Syrian Crimes Evidence be Admissible in European Courts?","authors":"Natalia Krapiva","doi":"10.15779/Z38Z31NP4G","DOIUrl":"https://doi.org/10.15779/Z38Z31NP4G","url":null,"abstract":"This Note explores potential admissibility challenges that may arise when European courts use evidence of Syrian crimes collected by the newly-established International, Impartial and Independent Mechanism for Syria (“the IIIM”). The Note examines the evidentiary rules of four European countries—France, Germany, the Netherlands, and Sweden––where Syrian cases are currently being investigated or prosecuted. Specifically, it focuses on evidence that was improperly or illegally obtained, including evidence procured by private actors. This Note also looks at the European Convention on Human Rights (“ECHR”) Article 8 and relevant case law from the European Court of Human Rights concerning illegal searches and seizures. Finally, this Note highlights the importance of avoiding admissibility issues that may arise as a result of the IIIM’s close cooperation with both private groups who gather the evidence on the ground and the European authorities that will ultimately be using such evidence in court.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67590352","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":"Party Preferences in Multidistrict Litigation","authors":"Andrew D. Bradt, Z. Clopton","doi":"10.15779/Z38TT4FT52","DOIUrl":"https://doi.org/10.15779/Z38TT4FT52","url":null,"abstract":"Perhaps the two most salient trends in complex litigation have been the rise of multidistrict litigation (MDL) and the fall of aggregation on plaintiffs’ terms. According to recent statistics, more than one third of federal cases are consolidated within MDLs — meaning that they are being litigated before judges handpicked by the Judicial Panel on Multidistrict Litigation (JPML), which itself was handpicked by the Chief Justice. Meanwhile, decisions on personal jurisdiction, class actions, and other topics have dramatically reduced plaintiffs’ abilities to select their preferred forum for complex cases. These trends intersect when jurists and scholars suggest that MDL provides a backstop for aggregate litigation because it is not constrained by rules on personal jurisdiction and class certification. The ultimate choice, then, of the forum in which large-scale cases will be litigated seems to be increasingly in the unconstrained hands of the JPML, and not the plaintiffs’. This reliance on MDL as the primary vehicle for aggregation makes it particularly important to know how plaintiffs and defendants fare before the JPML when they argue over where and before whom a new MDL should be heard. This paper presents the results of our empirical study of the relationship between party preferences and the assignment of MDLs to particular districts and judges. Based on a study of every MDL for a five-year period (2012-2016), we find that party preferences are meaningful for the selection of MDL districts. When plaintiffs and defendants agree on a preferred district, that district is very likely to be the eventual location of the MDL. When they disagree, the JPML sides with plaintiffs and defendants roughly equally. Whether this formal equality implies substantive equality, though, is an issue that merits further attention — and it raises deeper concerns about those forces that are pushing more cases into MDL in the first place. We also examine the characteristics of individual judges to which MDLs are assigned. We find that the JPML has not used its appointment power to engage in partisan behavior and it has ensured that transferee judges are as diverse as judges overall, although it has not been at the leading edge of diversification. In sum, we are encouraged by the Panel’s decisions as far as they go, though we believe that these findings call for further scrutiny of federal procedure and judicial administration. The Panel is treating plaintiffs and defendants equally with respect to forum choice, so it matters how frequently MDL is the best (or only) option for aggregation, and it is assigning cases to judges that are representative of federal district judges, so it matters who makes up the federal judiciary. And, of course, the Panel itself is a central actor in this ever-growing segment of federal litigation, so it matters whom the Chief Justice appoints to serve on the Panel in the first place. Understanding these forces is therefore critical to ","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67561697","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":"Proximate Cause in Statutory Standing and the Genesis of Federal Common Law","authors":"D. Yablon","doi":"10.15779/Z380000111","DOIUrl":"https://doi.org/10.15779/Z380000111","url":null,"abstract":"The federal courts have long struggled to articulate a set of coherent standards for who may assert rights under a federal statute. Apart from the constitutional limitations of the judicial power under Article III, courts have until recently addressed this question under a series of freestanding “prudential” rules governing standing to sue. The Supreme Court’s 2014 decision in Lexmark International v. Static Control Components marked a sea change, holding that the federal courts may not decline to assert jurisdiction for prudential reasons and that standing to sue under a federal statute depends on whom Congress intended to authorize to sue. But Lexmark raised as many questions as it answered. In the same breath that it declared statutory standing a matter of congressional intent, the Court held that proximate cause— a creature of the common law of tort—generally defines the limits of federal statutory claims. Subsequent decisions applying this rule have extrapolated the Court’s decisional law from narrow and specific settings to provide a new, trans-substantive limitation on standing to assert federal statutory rights.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67366926","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 Fallacy of the (Racial) Solidarity Presumption","authors":"L. S. Richardson, Cristina Mora, Sabrina McGraw, Caroline Mae McKay, Paul von Autenried, Lexi Heller, Patrick Rubalcava, Devon W. Carbado","doi":"10.15779/Z38707WP36","DOIUrl":"https://doi.org/10.15779/Z38707WP36","url":null,"abstract":"I. The Solidarity Presumption ............................................................ 1994 II. The Fallacy ................................................................................... 1996 A. Racial Anxiety Experienced by Blacks ............................ 1996 1. Conformity Pressure.................................................. 1997 2. Value Threat ............................................................. 2000 3. Lower Performance Ratings for Diversity-Valuing Behavior ................................................................... 2003 B. Racial Anxiety Experienced by Whites............................ 2004 Conclusion ........................................................................................ 2007","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67415588","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}