Ucla Law Review最新文献

{"title":"How Constitutional Norms Break Down","authors":"Josh Chafetz, David E. Pozen","doi":"10.31228/osf.io/zepkr","DOIUrl":"https://doi.org/10.31228/osf.io/zepkr","url":null,"abstract":"65 U.C.L.A Law Review 1430 (2018).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 so doing, begins to taxonomize and theorize the structure of constitutional norm change. We explore some of the different modes in which unwritten norms break down in our constitutional system and the different dangers and opportunities associated with each. Moreover, we argue that under certain plausible conditions, it will be more worrisome when norms are subtly revised than when they are openly flouted. This somewhat paradoxical argument suggests that many commentators have been misjudging our current moment: President Trump's flagrant defiance of norms may not be as big a threat to our constitutional democracy as the more complex deterioration of norms underway in other institutions.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45195138","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Invoking Common Law Defenses in Immigration Cases","authors":"F. Marouf","doi":"10.2139/SSRN.3136389","DOIUrl":"https://doi.org/10.2139/SSRN.3136389","url":null,"abstract":"This Article argues that we should take a deeper look at the applicability of federal common law defenses in immigration cases. In the rare cases where noncitizens attempt to raise common law defenses, such arguments tend to be dismissed offhand by immigration judges simply because removal proceedings are technically civil, not criminal. Yet many common-law defenses may be raised in civil cases. Additionally, immigration proceedings have become increasingly intertwined with the criminal system. After examining how judges already rely on federal common law to fill in gaps in the Immigration and Nationality Act (INA), this Article proposes three categories of removal cases where federal common law defenses are particularly viable. The first category involves INA provisions that require conduct to be unlawful without requiring a conviction; the second category involves INA provisions barring asylum, which are closely connected to principles of criminal culpability; and the third category involves certain grounds of removal with no explicit mens rea requirement. Finally, the Article examines some of the legal and practical challenges to prevailing with these defenses in the removal context, drawing on criminal cases where such defenses have been raised to immigration-related charges. The Article concludes that a more principled approach to the use of federal common law defenses in removal proceedings is necessary in order to promote consistent and fair adjudication.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2018-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43987698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Slap leather! Legal culture, wild Bill Hickok, and the gunslinger myth","authors":"Steven Lubet","doi":"10.4324/9781315089645-8","DOIUrl":"https://doi.org/10.4324/9781315089645-8","url":null,"abstract":"","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48521296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Rugged Individual's Guide to the Fourth Amendment: How the Court's Idealized Citizen Shapes, Influences, and Excludes the Exercise of Constitutional Rights","authors":"Scott E. Sundby","doi":"10.2139/SSRN.2941669","DOIUrl":"https://doi.org/10.2139/SSRN.2941669","url":null,"abstract":"Few figures inspire us like individuals who stand up for their rights and beliefs despite the peril that may follow. One cannot help but feel awe looking at the famous photograph of the lone Tiananmen Square protestor facing down a line of Red Army tanks, his willowy frame clothed in a simple white shirt and black pants as he holds a shopping bag. Or who can help but feel humbled by the courage of Rosa Parks, a seamstress, who finally had enough and was willing to be arrested rather than sit in the back of the bus. \u0000But while these stories of everyday individuals acting with remarkable courage inspire us, we would hesitate to say that before a citizen can enjoy his or her constitutional rights that he or she must exhibit a similar fortitude. A close examination of the Court’s cases, however, shows that the Court has imposed exactly such an expectation when it comes to the Fourth Amendment. The Court has repeatedly turned to the archetype of an idealized citizen – the “rugged individual” who will unflinchingly stand up to government authority – to define Fourth Amendment rights, and it has had disastrous consequences. The Court’s use of the rugged individual has created an unrealistic threshold for exercising one’s Fourth Amendment rights and is a primary reason why current Fourth Amendment doctrine has proven so impotent in addressing the severe problems with police-citizen encounters that have erupted across the country, from Seattle to Chicago to Ferguson to Baltimore, with each day’s headlines seemingly adding another city to the list. \u0000This Article will examine the Court’s use of the rugged individual archetype in its Fourth Amendment jurisprudence and demonstrate how instead of promoting values like dignity and autonomy, the values that the archetype was intended to represent, it has actively undermined those values to devastating effect. Not only does the empirical evidence show that acting like the rugged individual is beyond the reach of most of the citizenry when confronted by the police, it also shows that the archetype when applied to minority communities creates an especially dangerous situation that alienates and effectively disenfranchises a large swath of citizens from their rights. The Article concludes by examining the various reasons the Court continues to rely on the rugged individual and why that reliance must change. In its place, the Article proposes a rights-bearing citizen as an archetype that far better promotes the Fourth Amendment’s underlying values − an archetype that presumes that every citizen, whatever their race, income, or neighborhood, desires to exercise their Fourth Amendment rights and aligns Fourth Amendment jurisprudence with the realities of a police-citizen encounter.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47152016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Community in Conflict: Same-Sex Marriage and Backlash","authors":"Reva B. Siegel","doi":"10.2139/SSRN.2914674","DOIUrl":"https://doi.org/10.2139/SSRN.2914674","url":null,"abstract":"Did backlash to judicial decisions play a destructive role in debates over same-sex marriage, as is so often claimed? This article questions assumptions about consensus and constitutionalism that undergird claims about judicial backlash, and explores some constructive functions of conflict in our constitutional order. The debate over same-sex marriage illustrates that conflict, constrained by constitutional culture, can forge meanings and bonds that strengthen the constitutional order. Constitutional culture, on this account, includes the understandings about role that guide interactions among citizens and officials who disagree about the Constitution’s meaning. Analyzing the long-running conflict over same-sex marriage with attention to these role-based understandings leads us differently to evaluate the power and limits of judicial review. In this article I argue that the backlash narrative and the consensus model of constitutionalism on which it rests simultaneously underestimate and overestimate the power of judicial review. The Court’s decision in Obergefell was possible not simply because public opinion changed, but also because struggle over the courts helped change public opinion and forge new constitutional understandings. Even so, Obergefell has not ended debate over marriage, but instead has channeled it into new forms. Conflict of this kind is enabled, and constrained, by the role-based understandings of constitutional culture. A conclusion invokes anxieties attending the election of Donald Trump to illustrate how critical the perpetually contested role constraints of constitutional culture are in sustaining our constitutional order.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2914674","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46691083","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Defending the Sex Discrimination Argument for Lesbian and Gay Rights: A Reply to Edward Stein","authors":"A. Koppelman","doi":"10.2139/SSRN.2601762","DOIUrl":"https://doi.org/10.2139/SSRN.2601762","url":null,"abstract":"Edward Stein’s is only the latest and most systematic of a growing number of criticisms of the sex discrimination argument, from the left and the right. Stein’s doctrinal objections to the argument misconceive the reach of present doctrine, which treats all sex-based classifications with deep suspicion. His empirical doubts misapprehend both the argument’s claims and the enduring connections between heterosexism and sexism. His only persuasive claim is his moral objection, which argues that the sex discrimination argument ignores, and may render invisible, a central moral wrong of anti-gay discrimination. This is a profound moral difficulty, but it is one that is present in almost any legal argument, and perhaps in language as such. It therefore cannot be an objection against any particular argument.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2015-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68218865","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Plenary Power, Political Questions, and Sovereignty in Indian Affairs","authors":"Michalyn Steele","doi":"10.2139/SSRN.2564740","DOIUrl":"https://doi.org/10.2139/SSRN.2564740","url":null,"abstract":"A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court’s invocation of the political question doctrine to deprive tribes of meaningful judicial review when Congress has acted to the detriment of tribes. Similarly, many Indian law scholars view the plenary power doctrine — that Congress has expansive, virtually unlimited authority to regulate tribes — as a tool that fosters and formalizes the legal oppression of Indian people by an unchecked Federal government. The way courts have applied these doctrines in tandem has frequently left tribes without meaningful judicial recourse against breaches of the federal trust responsibility or intrusions upon tribal interests and sovereignty. Furthermore, there is a troubling inconsistency in the courts’ application of these doctrines to questions of inherent tribal sovereignty. For example, courts consider congressional abrogation of a treaty a kind of political question beyond the reach of the judiciary. At the same time, challenges to the inherent, or aboriginal, authority of tribes are deemed justiciable. The Court’s approach represents a kind of “heads I win; tails you lose” application of the political question and plenary power doctrines in Indian affairs.This paper proposes that rather than facing a rigged coin toss in the courts, tribes should be able to avail themselves of the political question and plenary power doctrines to have Congress rather than the courts decide questions of inherent tribal authority. Under current precedent, the Court has aggrandized its own power in Indian affairs through the theory of implicit divestiture, which holds that the Court may find tribes divested of inherent powers even without Congressional action. This Article argues that whether inherent tribal authority endures and which sovereign powers tribes exercise are political rather than judicial questions given the current landscape of plenary power, political question, and implicit divestiture doctrines in Indian law. Under this reading of the Court’s Indian law precedent, unless the Supreme Court reexamines these fundamental assumptions, the Supreme Court should treat questions challenging inherent tribal authority in much the same way it treats questions raised by tribes challenging congressional exercise of the Indian affairs power: as political questions that do not present justiciable controversies. This argument builds upon the author’s earlier work assessing the comparative institutional competency of Congress and the courts with regard to questions of inherent tribal authority and proposes a fundamental shift in the conception of the plenary power doctrine and the political question doctrine’s application in federal Indian law. Scholars have traditionally rejected and critiqued both the plenary power and the political question doctrines in Indian affairs because they leave a discrete and insular minority vulnerable to political whims. The critique has generally envisioned","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2015-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68206196","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Need for a Research Culture in the Forensic Sciences","authors":"Jennifer L. Mnookin, S. Cole, I. Dror, B. Fisher, M. Houck, K. Inman, D. Kaye, J. Koehler, G. Langenburg, D. Risinger, N. Rudin, J. Siegel, D. Stoney, Weiss Family Scholar, Beatrice Kuhn, J. Gibbons","doi":"10.2139/SSRN.1755722","DOIUrl":"https://doi.org/10.2139/SSRN.1755722","url":null,"abstract":"The methods, techniques, and reliability of the forensic sciences in general, and the pattern identification disciplines in particular, have faced significant scrutiny in recent years. Critics have attacked the scientific basis for the assumptions and claims made by forensic scientists both in and out of the courtroom. Defenders have emphasized courts’ long-standing acceptance of forensic science evidence, the relative dearth of known errors, and the skill and experience of practitioners. This Article reflects an effort made by a diverse group of participants in these debates, including law professors, academics from several disciplines, and practicing forensic scientists, to find and explore common ground. To what extent do the forensic sciences need to change in order to place themselves on an appropriately secure foundation in the 21st century? We all firmly agree that the traditional forensic sciences in general, and the pattern identification disciplines, such as fingerprint, firearm, tool mark and handwriting identification evidence in particular, do not currently possess – and absolutely must develop – a well-established scientific foundation. This can only be accomplished through the development of a research culture that permeates the entire field of forensic science. A research culture, we argue, must be grounded in the values of empiricism, transparency, and a commitment to an ongoing critical perspective. The forensic science disciplines need to substantially increase their commitment to evidence from empirical research as the basis for their conclusions. Sound research, rather than experience, training, and longstanding use, must become the central method by which assertions are justified. In this Article, we describe the underdeveloped research culture in the non-DNA forensic sciences, offer suggestions for how it might be improved, and explain why it matters.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2011-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1755722","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67735230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sticky Intuitions and the Future of Sexual Orientation Discrimination","authors":"Suzanne B. Goldberg","doi":"10.4324/9781315088051-5","DOIUrl":"https://doi.org/10.4324/9781315088051-5","url":null,"abstract":"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 discourse. Although the individual intuitions will not surprise those familiar with the field, their amalgamation into a typology sheds light on their synergies as well as the complex nature of their influence. After describing these entangled intuitions, I offer several provisional observations regarding intuitions’ influence on lawmaking generally. I then raise what is likely to be a critical question going forward: In an era in which courts and legislatures continue to sustain sexual orientation discrimination, despite empirical data negating any legitimate basis for the embraced distinctions, how much candor ought there be in challenges to judicial and public squeamishness about homosexuality and gender roles? Cognitive theorists offer helpful insights, although operationalizing what we know about altering intuitions may be particularly difficult in the litigation context. Still, there are a number of options that warrant continued consideration by both theorists and strategists in the field.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70627908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Officious Intermeddlers or Citizen Experts? Petitions and Public Production of Information in Environmental Law","authors":"Eric Biber, B. Brosi","doi":"10.2139/SSRN.1432652","DOIUrl":"https://doi.org/10.2139/SSRN.1432652","url":null,"abstract":"Commentators have bemoaned the role that petitions and citizen suits play in driving the regulatory agendas for environmental agencies. The argument is that these forms of public participation frequently distract agencies from the priorities that experts believe should be the focus of regulatory efforts. Using data from the listing of species for protection under the U.S. Endangered Species Act, we examine whether petitions and citizen suits result in suboptimal agenda setting by agencies. We find that petitions and litigation result in the identification of species that are at least as deserving of protection under the Act as the species identified by the agency. Our results raise the possibility that public participation, by collecting diffuse information about environmental conditions, might help improve the performance of environmental agencies.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2009-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68180097","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}