California Law Review最新文献

{"title":"Is Qualified Immunity Unlawful","authors":"William Baude","doi":"10.2139/SSRN.2896508","DOIUrl":"https://doi.org/10.2139/SSRN.2896508","url":null,"abstract":"The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point. This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity. But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference. Rather than doubling down, the Court ought to be beating a retreat.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"45"},"PeriodicalIF":2.4,"publicationDate":"2018-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45063563","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":"#IU: Considering the Context of Online Threats","authors":"L. Lidsky, Linda Riedemann Norbut","doi":"10.15779/Z38JM23G4C","DOIUrl":"https://doi.org/10.15779/Z38JM23G4C","url":null,"abstract":"The United States Supreme Court has failed to grapple with the unique interpretive difficulties presented by social media threats cases. Social media make hateful and threatening speech more common but also magnify the potential for a speaker’s innocent words to be misunderstood. People speak differently on different social media platforms, and architectural features of platforms, such as character limits, affect the meaning of speech. The same is true of other contextual clues unique to social media, such as gifs, hashtags, and emojis. Only by understanding social media contexts can legal decision-makers avoid overcriminalization of speech protected by the First Amendment. This Article therefore advocates creation of a procedural mechanism for raising a “context” defense to a threats prosecution prior to trial. Comparable privileges protect defamation defendants from having their opinions misconstrued as defamatory and allow them to have their liability resolved at an early stage of litigation, often avoiding the anxiety and expense of trial. This Article contends that criminal defendants in threats cases should have a similar defense that permits them to produce contextual evidence relevant to the interpretation of alleged threats for consideration by a judge at a pretrial hearing. In cases that cannot be resolved before trial, the context defense would entitle a defendant to produce contextual evidence at trial and have the jury instructed regarding the role of context in separating threats from protected speech. Although adoption of the context defense would be especially helpful in correctly resolving social media cases, its use in all threats cases would provide an important safeguard against erroneous convictions of speech protected by the First Amendment.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"1885"},"PeriodicalIF":2.4,"publicationDate":"2018-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42531916","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 Attorneys are Bound and the Witnesses are Gagged: State Limits on Post-Conviction Investigation in Criminal Cases","authors":"Kathryn Miller","doi":"10.15779/Z38WW7703F","DOIUrl":"https://doi.org/10.15779/Z38WW7703F","url":null,"abstract":"This Article is the first to take a comprehensive look at the ways in which State actors restrict post-conviction investigations in criminal cases, especially capital cases. By examining these restrictions in the context of interviews with jurors, victims, and State witnesses, this Article reveals that they harm criminal defendants and fail to achieve stated policy goals. The Article then examines why traditional legal arguments against these restrictions have failed, and ultimately makes the case for a constitutional right to investigate state post-conviction proceedings, grounded in the fundamental fairness prong of the Due Process Clause.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"135"},"PeriodicalIF":2.4,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48001674","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":"Reclaiming the Constitutional Text from Originalism: The Case of Executive Power","authors":"V. Nourse","doi":"10.2139/SSRN.3103948","DOIUrl":"https://doi.org/10.2139/SSRN.3103948","url":null,"abstract":"There are consequences to theories in a world questioning the power of the President. For decades, some originalists, including Justice Scalia, maintained that the President enjoys “all” executive power. Of course, this is not the Constitution’s actual text (which refers to “the” executive power, not “all” executive power) — but a highly contestable, and potentially dangerous, addition of meaning to the text. As I demonstrate in this Article, adding to the actual text of the Constitution is common in the originalist literature on executive power, whether the precise question is the President’s removal power, the President’s power to refuse to enforce the law, or the President’s obligations under the Emoluments Clause. Using elementary principles from the philosophy of language — principles that apply to all communication — I explain how originalist interpreters in this area “pragmatically enrich” the text, without articulating or justifying those additions and without seeking to test those meanings against the full text of the Constitution. Before one gets to history, the originalist has assumed a unit of textual analysis — a word, a clause, a paragraph — that may effectively enrich the meaning to reflect the interpreter’s preferred policy position. If this is correct, originalists must theorize the “interpretation zone,” a putatively neutral place from which historical inquiries are launched, and explain why interpreters may add meaning by pragmatic enrichment in this zone — particularly if those meanings are falsified by the rest of the Constitution. Perhaps more importantly, originalism’s opponents need to start talking about how to reclaim the actual text of the Constitution.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"1"},"PeriodicalIF":2.4,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41644538","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":"Color as a Batson Class in California","authors":"Emily Margolis","doi":"10.15779/Z38PC2T88P","DOIUrl":"https://doi.org/10.15779/Z38PC2T88P","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"2067"},"PeriodicalIF":2.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67523287","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":"All Disputes Must Be Brought Here: Atlantic Marine and the Future of Multidistrict Litigation","authors":"Jordan F. Bock","doi":"10.15779/Z38BG2H979","DOIUrl":"https://doi.org/10.15779/Z38BG2H979","url":null,"abstract":"Multidistrict litigation (“MDL”) is an immensely powerful tool. In an MDL, cases that share a common question of fact are consolidated in a single district for pretrial proceedings. MDLs abide by the general principle that governs all transfers within the federal system: because transfer is no more than a “housekeeping measure,” an action retains the choice-of-law rules of the state in which it was filed. If a case filed in California is transferred to an MDL pending in Iowa, the transferee court in Iowa applies California’s choice-of-law rules. As a result, the cases maintain their identities through the retention of their individual home state’s choice-of-law rules. It is thus a critical feature of MDLs—which have far fewer procedural protections than class actions—that transfer to an MDL does not change the applicable law for any individual action. In non-aggregate litigation, this general transfer rule no longer applies, however, when a case is transferred pursuant to a forum-selection clause. Under the Supreme Court’s 2013 decision in Atlantic Marine Construction Co. v. U.S. District Court, the transferee court applies its own choice-oflaw rules instead. Thus, if a case filed in California is transferred to Iowa in accordance with a forum-selection clause, the transferee court in Iowa applies Iowa’s choice-of-law rules. Although Atlantic Marine involved a non-aggregate proceeding, courts have begun to consider whether this principle should control choice of law in complex litigation governed by a forum-selection clause. This Note argues that it should not. To begin, extending Atlantic Marine to the MDL context might allow the fact of consolidation to change the outcome in a case. Doing so would also expand due process concerns already inherent in aggregate proceedings, and MDL is not an appropriate forum in which to allow parties discretion to craft their own rules of dispute resolution. Accordingly, to preserve the integrity of the MDL process, MDL courts should consistently apply the choice-of-law rules of the transferor court, even when an action is governed by a valid forumselection clause. 1658 CALIFORNIA LAW REVIEW [Vol. 106:1657 Abstract ................................................................................................. 1657 Introduction ........................................................................................... 1658 I. Prioritization of Vertical Uniformity ................................................. 1661 A. The Accident of Diversity Jurisdiction .............................. 1662 B. Transfer as a “Housekeeping” Measure ............................. 1664................................................................................................ 1657 Introduction ........................................................................................... 1658 I. Prioritization of Vertical Uniformity ................................................. 1661 A. The Accident of Diversity Jurisdiction .","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"1657"},"PeriodicalIF":2.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67442326","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":"Are Women's Spaces Transgender Spaces? Single-Sex Domestic Violence Shelters, Transgender Inclusion, and the Equal Protection Clause","authors":"Rishita Apsani","doi":"10.15779/Z38125Q91G","DOIUrl":"https://doi.org/10.15779/Z38125Q91G","url":null,"abstract":"Transgender survivors of intimate partner violence (IPV) face unique struggles in finding safe and inclusive housing as they seek reprieve from violence. Domestic violence shelters are often marked “women-only” with the goal of creating spaces for female empowerment, wherein women learn feminist principles of liberation and find a “sisterhood” of support by forging healthy female relationships. However, as a result, shelters frequently deny transgender women access because staff perceive them to be a threat to survivor comfort and to be disruptive to shelters’ femaleempowerment model. Consequently, though transgender women face similar gender-based oppression and a relatively higher risk of violence as compared to cisgender women, shelters commonly deny transgender women equal protection. This Note conceptualizes how a Fourteenth Amendment equal protection challenge by transgender litigants to women-only shelters might proceed in federal courts. By situating transgender identity within the Supreme Court’s broader equal protection jurisprudence, it outlines three ways that the Court could analyze a transgender equal protection challenge: as an issue of first impression, as a sex-based discrimination claim, or as a sexual orientation claim. DOI: https://doi.org/10.15779/Z38125Q91G Copyright © 2018 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * J.D., University of California, Berkeley, 2018. I sincerely thank Professors Russell Robinson, Nancy Lemon, and Christopher Tomlins for all of their insightful feedback. Thank you also to the excellent editors of the California Law Review for their careful edits. 1690 CALIFORNIA LAW REVIEW [Vol. 106:1689 Abstract ................................................................................................. 1689 Introduction ........................................................................................... 1690 I. History and Background .................................................................... 1693................................................................................................ 1689 Introduction ........................................................................................... 1690 I. History and Background .................................................................... 1693 A. Dominance Feminism: Philosophy, Tools, and Impact on Domestic Violence Laws ................................................... 1694 B. Criticism from Within: Intersectional Feminist Response 1697 II. Domestic Violence Shelters & The Case For Transgender Inclusion .................................................................................... 1702 A. The Rise of the “Shelter Movement” ................................. 1703 B. Transgender Exclusion & The Case for Inclusion ............. 1704 III. Transgender Identity & The Equal Protection Clause","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"17 1","pages":"1689"},"PeriodicalIF":2.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67373895","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":"Procedural Experimentation and National Security in the Courts","authors":"S. Sinnar","doi":"10.15779/Z382B8VC0B","DOIUrl":"https://doi.org/10.15779/Z382B8VC0B","url":null,"abstract":"In the last fifteen years, individuals have brought hundreds of cases challenging government national security practices for violating human rights or civil liberties. Courts have reviewed relatively few of these cases on the merits, often deferring broadly to the executive branch on the grounds that they lack expertise, political accountability, or the ability to protect national security secrets. Yet in cases where courts have permitted civil suits to proceed far enough to decide legal questions, influence policy, or afford litigants relief, they have often experimented with new methods for managing the secret information implicated in many national security cases. These procedures include centralizing cases through Multidistrict Litigation, conducting in camera review of sensitive documents, pressing the government to provide opposing counsel access to secret evidence, appointing special experts of their own, facilitating","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"991"},"PeriodicalIF":2.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67383445","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":"Trademark’s Judicial De-Evolution: Why Courts Get Trademark Cases Wrong Repeatedly","authors":"G. Lunney","doi":"10.15779/Z38BR8MG5J","DOIUrl":"https://doi.org/10.15779/Z38BR8MG5J","url":null,"abstract":"Trademark law has de-evolved. It has transitioned from an efficient mechanism for ensuring competition into an inefficient regime for capturing economic rents. In this Article, I focus on the role that party self-interest has played in biasing the evolution of trademark law. This self-interest tends to lead parties to (1) challenge efficient legal rules and seek to replace them with inefficient, anticompetitive rules, and (2) accede to inefficient, anticompetitive rules once they are in place. Almost by definition, when a rule of trademark law promotes competition, it reduces the market surplus or rents that current producers capture. As a result, parties will seldom spend resources either to defend an efficient trademark rule or to challenge an inefficient trademark rule in the hope of replacing it with a more efficient rule. Instead, inefficient trademark rules offer a party, usually the trademark owner, the opportunity to capture rents. As a result, at least one party will have a correspondingly strong interest in defending such inefficient trademark rules or, if necessary, challenging efficient trademark rules in the hope of replacing them with inefficient trademark rules. DOI: https://doi.org/10.15779/Z38BR8MG5J Copyright © 2018 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Professor of Law, Texas A&M University School of Law. I would like to thank Mark Lemley, Lydia Loren, Mark McKenna, and Rebecca Tushnet, as well as the participants at Intellectual Property in the Trees, held at Lewis & Clark in 2016, the 2015 Works-in-Progress Intellectual Property Colloquium, held at the United States Patent and Trademark Office, and the 2017 Scholarship Symposium at INTA’s Annual Meeting in Barcelona for helpful comments and suggestions. 1196 CALIFORNIA LAW REVIEW [Vol. 106:1195 The net result has been something of a perfect storm for trademark law. Efficient legal rules are repeatedly challenged until they are replaced with inefficient legal rules, at which point no one challenges them. The entirely predictable result of this process is exactly what scholars have observed: courts have re-written trademark law so that it protects far too much and far too broadly. Rather than ensure competition, it serves to restrict competition and to maximize the profits of trademark owners. Rather than promote consumer welfare, it has become a form of corporate welfare. We cannot, however, fix the problems with trademark law through substantive trademark doctrine. Substantive reform, even radical substantive reform, would simply provide a new starting point from which inefficient common law evolution would again proceed. To fix the ongoing de-evolution of trademark law, we need to change the process of trademark litigation to ensure, first, that parties have an adequate incentive to defend and fight for efficient legal rules, and ","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"1195-1275"},"PeriodicalIF":2.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67444517","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 Case of the Armenian Catholicosate in Sis: Places of Worship and Religious Freedom Claims Before the European Court of Human Rights","authors":"Carla Gharibian","doi":"10.15779/Z38M61BP9Q","DOIUrl":"https://doi.org/10.15779/Z38M61BP9Q","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"481"},"PeriodicalIF":2.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67503926","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}