The Circuit

 

The Circuit is the online edition of the California Law Review. It is intended to promote robust scholarly discussion of our print articles, current perspectives from practitioners and judges, and other contributions to legal scholarship. We seek to publish a wide range of timely legal commentaries, essays, response pieces, reviews, debates, and student work.

The Circuit publishes on a rolling basis at the discretion of its editors and members of the California Law Review. Submissions are typically fewer than 3,000 words and lightly footnoted.

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Published in 2016

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The Joy of Sex Bureaucracy, Susan Frelich Appleton and Susan Ekberg Stiritz

This essay responds to The Sex Bureaucracy, in which Jacob Gersen and Jeannie Suk condemn regulations of sexual conduct they see metastasizing on college campuses, pursuant to Title IX’s mandate for equal educational opportunities in institutions receiving federal funds. We focus on the authors’ most trenchant critique, which slams efforts to teach sexual health principles and practices on the ground that, in doing so, universities are “regulating sex itself” and interfering with “ordinary sex.” By placing recent sexual health and violence prevention measures in historical and cultural context, we challenge the authors’ assumption that, absent such instruction, sex occurs naturally and unproblematically on college campuses. In addition, contrary to the authors’ negative assessment, we highlight the value and promise of some of the newer developments they contest. We understand such interventions as a form of sex education, which we call “higher sex education,” given both the campus loci and the advancements apparent when compared to many more familiar sex curricula. We show, in context, why such instruction belongs in higher educational institutions and how it has the potential to transform campus sexual cultures and enhance students’ sexual unfolding—preparing them for healthier and more pleasurable sexual futures. We conclude by noting ways in which higher sex education might improve as it continues to evolve.

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The Trouble with “Bureaucracy”, Deborah L. Brake

Despite heightened public concern about the prevalence of sexual assault in higher education and the stepped-up efforts of the federal government to address it, new stories from survivors of sexual coercion and rape, followed by institutional betrayal, continue to emerge with alarming frequency. More recently, stories of men found responsible and harshly punished for such conduct in sketchy campus procedures have trickled into the public dialogue, forming a counter-narrative in the increasingly polarized debate over what to do about sexual assault on college campuses. Into this frayed dialogue, Jeannie Suk and Jacob Gersen have contributed a provocative new article criticizing the federal government’s efforts to regulate sexuality on campus as a bureaucratic overreach. This essay offers several counterpoints for thinking about Gersen and Suk’s critique. First, how much personal liberty would be enhanced by the dismantling of the bureaucracy depends on the conditions of sexual equality in which that liberty will be exercised. Second, Gersen and Suk’s lens of bureaucracy obscures the pre-existing role that government and institutional actors have played in regulating and influencing the conditions of sexuality. Finally, Gersen and Suk’s account of the democratic illegitimacy of the federal sex bureaucracy neglects the grassroots activism that pressed for a tougher regulatory regime and the legitimate role executive agencies can play, consistent with robust democratic engagement, in strengthening sex equality law. In the final analysis, any decision to disengage or recalibrate the federal sex bureaucracy must take into account and bring into dialogue the stories of both survivors and accused students.

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A New Southern Strategy of Multigroup Oppression: A Response to Standard White by Michael Morris, Richard Delgado and Jean Stefancic

Building on a recent review essay by Michael Morris, Delgado and Stefancic show how conservative strategists marshal regional animus against Latinos to improve GOP electoral prospects and set one minority group against another to the detriment of both.

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Forman v. Henkin: The Conflict Between Social Media Discovery and User Privacy, Alexandra D. Jones

In Forman v. Henkin, the First Appellate Division of the Supreme Court of New York clarified New York’s rules for social media discovery. The court held that if a party seeks to gain access to a private social media account as part of the discovery process, that party must first make a threshold showing of “relevance” prior to being granted access to the account. To make such a showing, the party requesting discovery must find publicly available social media posts from the opposing party that are somehow relevant to the opposing party’s claim or defense. Following a discussion of the court’s holding, this Comment discusses the implications of the court’s decision on the broader discovery process and calls for a reconsideration of the rules for social media discovery.

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California Building Industry Association v. City of San Jose: The Constitutional Price for Affordable Housing, Kristoffer James S. Jacob

The California Supreme Court held, in the landmark case California Building Industry Association v. City of San Jose, that the City of San Jose’s inclusionary housing ordinance is a valid exercise of the City’s police power. In the context of legal precedent, the California Supreme Court decided the case correctly by applying a lenient standard of review rather than a searching analysis because the ordinance was a legislative decision. Following an overview of legal precedent and analysis of the California Supreme Court’s decision, this Comment argues that the court’s holding weakens constitutional protections of private properties. This Comment calls for the end of the continued distinction between administrative and legislative policies because both actions warrant the same fears that merit a searching analysis to safeguard the constitutional protections of private properties.

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New York v. Actavis: Innovation by Persuasion in a Noncoercive Consumer Economy, Bartek Sudol

The New York v. Actavis decision created the coercion test as an intermediate step toward characterizing product-hopping as an antitrust offense. This Note argues that, through the introduction of the coercion test, Actavis deemphasized the importance of consumer benefits flowing from innovation—whether trivial or substantial—in the demand-side antitrust analysis. Further, the coercion test, defined in generic terms, may potentially dampen innovation in the technology sector. Indeed, an overbroad reading of a loosely-defined doctrine may allow a court to interpret a rapid succession of generations of consumer electronics and related operating software as coercive and therefore anticompetitive. To avoid this pernicious effect, the Second Circuit should clarify the doctrinal bounds of the coercion test.

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Subverting the Communications Decency Act: J.S. v. Village Voice Media Holdings, Cynthia Lee

This Comment discusses J.S. v. Village Voice Media Holdings, arguing that the Washington Supreme Court erodes the safe harbor provision of the Communications Decency Act (CDA) of 1996 in this decision. As affirmed by several circuits, the CDA exempts websites and other interactive computer services from liability over third-party content so long as they remain uninvolved in content creation. Contrary to precedent however, J.S. defines content creation in an overbroad manner, making it substantially easier for a plaintiff to argue against the applicability of a CDA safe harbor. In doing so, the J.S. court opens the metaphorical litigation floodgates and imposes significant administrative and financial burdens on interactive computer services.

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Shaun McCutcheon v. FEC: More Money, No Problem, Alexander S. Epstein

This Comment discusses the implications of McCutcheon v. FEC, arguing that Justice Roberts’s opinion, coupled with Citizens United v. FEC, eviscerates campaign finance laws. The plurality’s position drastically contravenes public policy, overlooks its own precedent, and erroneously ignores McCutcheon’s inevitable effects.

Published in 2015

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Marriage Equality and The “New” Maternalism, Cynthia Godsoe

The battle over same-sex marriage centered on children, with both sides claiming to be the guardians of children’s welfare. Although marriage equality undoubtedly represents a victory for diverse families, the focus on children has also had the detrimental impact of imposing a traditional parenthood paradigm. Specifically, the Obergefell v. Hodges opinion reflects a maternalist philosophy wherein a woman’s perceived natural and limited role is as an all-sacrificing mother virtually inseparable from her children. Justice Kennedy’s description of one female plaintiff couple speaks volumes: “April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon.”

This Essay explores the maternalism infusing the Obergefell opinion and argues that it expresses a traditional view of women’s place in the family and in the public sphere. Maternalism brings dual harms of limiting all women’s roles while ignoring the many women, particularly low-income women and women of color, who do not fit the ideal mother paradigm. Obergefell’s focus on the female plaintiffs’ maternity, in contrast to its description of the male plaintiffs’ occupations, mirrors the nineteenth century concept of separate spheres; women are guardians of the private home sphere while men dominate the public professional and civic sphere. Despite deciding against opponents of same-sex marriage, the opinion thus inadvertently endorses their gendered parenting arguments. Indeed, this Essay draws parallels between Justice Kennedy’s praise for the ideal motherhood of the plaintiffs and his prior opinion restricting access to abortion in Gonzales v. Carhart. To be clear, this critique is not meant to suggest that Obergefell should have come out differently, or that its holding is as harmful as Carhart’s. Nonetheless, even the well-intended reification of motherhood brings costs. The ongoing gendered stereotypes embedded in Obergefell reinscribe essentialist gender roles in the family and polity, ultimately limiting marriage equality’s egalitarian power.

Obergefell at the Intersection of Civil Rights and Social Movements, Suzanne B. Goldberg

A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances.

This essay considers the distinct ways in which the civil rights and social movements for marriage equality gave rise to this durable socio-political transformation. While some scholarship is skeptical about whether rights-focused advocacy can bring meaningful change to people’s day-to-day lives, I argue that the marriage equality movements demonstrate a synergistic relationship between law reform and social change efforts. During the decades leading up to Obergefell, two movements—one focused primarily on law and the other on social acceptance—had a strong coalescence in their goals and desires. Legal action functioned as a lever for social movement engagement, and the growing social movement desire for marriage prompted further legal action, all ultimately resulting in the landscape that made Obergefell possible.

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Interpreting Liberty and Equality Through the Lens of Marriage, Nan D. Hunter

In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the moral worthiness of same-sex couples who wish to marry provides the ultimate justification for recognizing a constitutional right. The conceptual fulcrum in this analysis is dignity, which other courts have interpreted as an intrinsic human right that extends to a pluralism of family forms, but which this Court positions as closely linked to respectability. Dignity and marriage are interwoven in the Court’s analysis, creating implicit bounds for liberty and equality. As a result, access to a legal status of enormous material and cultural value appears to be as closely linked to social conformity as to law.

Looking to the near future, I point out that, despite the breadth of its language, Obergefell leaves three important questions unanswered: whether the Court’s liberty analysis will extend to non-marital intimate relationships; whether the Court’s equal protection holding will suffice to prohibit discriminatory government policies that do not trench on fundamental rights; and whether there is a commensurate fundamental right not to marry without forfeiture of public benefits that favor persons who choose to marry. These are among the next frontiers in the field of state regulation of sexuality and adult relationships. From a law and social movements perspective, the achievement of equal access to marriage raises for the LGBT rights movement the same question long faced by other civil rights movements: whether and how to seek more robust understandings of equality under law. Obergefell marks an important step forward in efforts to end discrimination, which merits celebration, but it raises as many questions as it answers.

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The Respectable Dignity of Obergefell v. Hodges, Yuvraj Joshi

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times—to no one’s surprise. References in Obergefell to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. In Casey, “dignity” expressed respect for a woman’s freedom to make choices about her pregnancy. Casey laid the foundation for Lawrence v. Texas, which paved the path for United States v. Windsor and later Obergefell. But, the “dignity” of Obergefell is not the “dignity” of Casey. This Essay demonstrates how Obergefell shifts dignity’s focus from respect for the freedom to choose toward the respectability of choices and choice makers. As importantly, I show that Obergefell’s reasoning inflicts its own dignitary harms. Put together, Obergefell disregards the idea that different forms of loving and commitment might be entitled to equal dignity and respect.

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Marriage (In)equality and the Historical Legacies of Feminism, Serena Mayeri

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history of transformational change invoked in Obergefell gives us reason to hope that marriage’s privileged legal status may not be impervious to challenge.

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Obergefell’s Squandered Potential, Peter Nicolas

This essay critically assesses Justice Kennedy’s opinion in Obergefell v. Hodges, which declared unconstitutional state laws and constitutional provisions barring same-sex couples from lawfully marrying in the state or having their lawful out-of-state marriages recognized by the state. While acknowledging the important role that Justice Kennedy has played in advancing the cause of gay rights over the past two decades—through his authorship of four separate decisions vindicating the rights of gays and lesbians—the essay critiques Justice Kennedy for failing in any of these cases to declare sexual orientation a suspect or quasi-suspect classification under the Equal Protection Clause. The essay considers and rejects a number of possible justifications for his failing to reach the issue in any of the gay rights cases, and demonstrates how his failure to do so has caused harm to gay and lesbian litigants in the past that is likely to recur in the future. While acknowledging Justice Kennedy’s important contributions to the field of gay rights, the essay concludes that he could have left a more stable and enduring legacy had he followed a different pathway in Obergefell.

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Do Immigrants Have Freedom of Speech?, Michael Kagan

The Department of Justice (DOJ) recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. The DOJ built its argument on conflicted case law governing immigrants’ constitutional rights. This Essay argues that, contrary to the DOJ position, all people in the United States are protected by the First Amendment. Moreover, it argues that for reasons that have not been widely appreciated, Citizens United v. FEC offers significant doctrinal support for immigrant speech rights because it articulates a strong rule against speech discrimination based on identity rather than content.

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Judicial Limits in Addressing Homelessness: Desertrain v. City of Los Angeles, Lindsay Walter

This comment examines the recent Ninth Circuit case, Desertrain v. City of Los Angeles. The Ninth Circuit seeks to establish a standard that prohibits discretionary enforcement of city municipal codes against homeless people, removing one tool that cities use to keep homeless people out of public spaces. However, the court does not provide cities with an alternative policy option to police public spaces. Thus, the court’s standard must work in tandem with community advocates and elected officials to achieve true change for homeless people.

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Integral and Indispensable? Defining “Work” in Integrity Staffing Solutions, Inc. v. Busk, Taylor Altman

In Integrity Staffing Solutions, Inc. v. Busk, the Supreme Court held that post-work security screenings were noncompensable under the FLSA because they were neither the primary activity that the employees were hired to perform nor “integral and indispensable” to that activity. Following a discussion of the Court’s decision, this Comment calls for a reconsideration of what constitutes “work” in light of modern-day constraints on employee autonomy and issues of workplace fairness.

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Flo & Eddie, Inc. v. Sirius XM Radio, Inc.: Public Performance Rights for Pre-1972 Sound Recordings, Noah Drake

Historically, radio broadcasters have never paid royalties to rightsholders in sound recordings made before 1972 because it was assumed that there were no public performance rights for such recordings. This was challenged recently when former Turtles members, Flo & Eddie, brought suit in California against Sirius XM, successfully arguing that state law confers a public performance right in pre-1972 sound recordings. This Comment examines the outcome of Flo & Eddie’s case, arguing, among other things, that the court improperly overlooked important policy implications. The Comment then proposes that Congress impose a federal standard for pre-1972 sound recordings, thereby preempting state laws, many of which are poorly construed.

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Meta-stories and Missing Facts, Andrew Jensen Kerr

This essay renews the debate on the relevance of a literary sensibility to legal practice. Instrumental modalities of legal reasoning inform – and limit – what may count as legal facts. I reference the pattern of high-profile cases at the intersection of race and law enforcement to argue that the strategic description of setting in literary works can provide a model for “creating context” in legal writing.

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The Path of Robotics Law, Jack B. Balkin

This essay, written as a response to Ryan Calo’s valuable discussion in “Robotics and the Lessons of Cyberlaw,” describes key problems that robotics and artificial intelligence (AI) agents present for law.

The first problem is how to distribute rights and responsibilities among human beings when non-human agents create benefits like artistic works or cause harms like physical injuries. The difficulty is caused by the fact that the behavior of robotic and AI systems is “emergent;” their actions may not be predictable in advance or constrained by human expectations about proper behavior. Moreover, the programming and algorithms used by robots and AI entities may be the work of many hands, and may employ generative technologies that allow innovation at multiple layers. These features of robotics and AI enhance unpredictability and diffusion of causal responsibility for what robots and AI agents do.

Lawrence Lessig’s famous dictum that “Code is Law” argued that combinations of computer hardware and software, like other modalities of regulation, could constrain and direct human behavior. Robotics and AI present the converse problem. Instead of code as a law that regulates humans, robotics and AI feature emergent behavior that escapes human planning and expectations. Code is lawless.

The second problem raised by robotics and AI is the “substitution effect.” People will substitute robots and AI agents for living things — and especially for humans. But they will do so only in certain ways and only for certain purposes. In other words, people tend to treat robots and AI agents as special-purpose animals or special-purpose human beings. This substitution is likely to be incomplete, contextual, unstable, and often opportunistic. People may treat the robot as a person (or animal) for some purposes and as an object for others. The problem of substitution touches many different areas of law, and it promises to confound us for a very long time.

Finally, the essay responds to Calo’s argument about the lessons of cyberlaw for robotics. Calo argues that lawyers should identify the “essential qualities” of robotics and then ask how the law should respond to the problems posed by those essential qualities. I see the lessons of cyberlaw quite differently. We should not think of essential characteristics of technology independent of how people use technology in their lives and in their social relations with others. Because the use of technology in social life evolves, and because people continually find new ways to employ technology for good or for ill, it may be unhelpful to freeze certain features of use at a particular moment and label them “essential” qualities. Innovation in technology is not just innovation of tools and techniques; it may also involve innovation of economic, social and legal relations. As we innovate socially and economically, what appears most salient and important about our technologies may also change.

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Commentary: Exploiting Mixed Speech, Caroline Mala Corbin

The Supreme Court has been taking advantage of mixed speech—speech that is both private and governmental—to characterize challenged speech in the way that permits the government to sponsor Christian speech. In Pleasant Grove City v. Summum, a free speech case where the government accepted a Christian Ten Commandments monument but rejected a Summum Seven Aphorisms monument, the Court held that privately donated monuments displayed in public parks were government speech as opposed to private speech and therefore not subject to free speech limits on viewpoint discrimination. In Town of Greece v. Galloway, an establishment case where the local government invited overwhelmingly Christian clergy to give a prayer before town meetings, the Court found no Establishment Clause violation in part by attributing constitutionally troubling aspects of the speech to the private speakers rather than to the government.

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Forced Decryption as a Foregone Conclusion, Dan Terzian

This essay examines how the Fifth Amendment Self-Incrimination Clause applies to encrypted data. In particular, it focuses on the Clause’s foregone conclusion exception, which allows the government to compel the production of information where the government reasonably knows that information exists. This essay argues that, under this exception, the government can compel a person to decrypt an encrypted hard drive and to produce the now-unencrypted data.

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American Insurance Association v. United States Department of Housing and Urban Development: Reframing Chevron to Achieve Partisan Goals, Margaret Burgess

With the Supreme Court poised to address the fate of the disparate impact theory this term, a recent decision by the U.S. District Court in the District of Columbia has grabbed the legal community’s attention: it struck down the U.S. Department of Housing and Urban Development’s (HUD) rule recognizing the disparate impact theory under the Fair Housing Act. This decision has already raised concerns about its impact on the Supreme Court’s upcoming decision, but it should also raise concerns about the impartiality of the courts in applying Chevron deference to agency interpretations. This case note argues that the district court blatantly altered the Chevron framework in order to achieve its own partisan outcome—the dismantling of disparate impact—and therefore it undermines both Chevron and the legitimacy of the courts.

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Loos v. Immersion Corporation: Redefining the Standard in Loss Causation Arguments, Dennise Martinez

The Ninth Circuit recently ruled that a company announcement of an internal investigation is insufficient to establish a loss causation theory in a securities fraud action under section 10(b) of the Exchange Act. Specifically, it stated that an announcement of an investigation is not a corrective disclosure—an event that discloses a company’s fraud. This Comment argues courts should apply a rebuttable presumption that broadens the definition of corrective disclosure to include announcements of these investigations. This Comment concludes that, unlike the Ninth Circuit’s narrow definition of corrective disclosure, the rebuttable presumption framework would allow investors the opportunity to be fully compensated for their losses in securities fraud actions.

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No State Power: Critiquing the Eighth Circuit’s Preemption Analysis in Keller v. City of Fremont, Meghan Harrington

This note contends that federal law should preempt state and local laws that regulate where undocumented immigrants may reside within the United States. In Keller v. City of Fremont, the Eight Circuit recently upheld a local ordinance prohibiting undocumented immigrants from renting housing within the boundaries of the city of Fremont. Though the U.S. Supreme Court denied certiorari to review the decision, the Eighth Circuit’s analysis of preemption doctrine conflicts with the Third, Fifth, and Eleventh Circuits’ interpretation of preemption doctrine as it applies to housing restrictions on immigrants. This note argues that the Eighth Circuit’s decision should be revised to comport with the analysis adopted by the majority of circuit courts.

Published in 2014

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How to Be an Authentic Indian, M. Alexander Pearl

The mascot and team name of the Washington, D.C. professional football team is making headlines. What do Authentic Indians really think about it? This essay clears the air by replacing the liberal media talking points with an actual viewpoint from Indian Country. This perspective gives an inside view into the significant efforts to maintain longstanding traits of "Indian-ness" against an onslaught of political correctness gone mad.

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In re Sanders and the Resurrection of Stanley v. Illinois, Josh Gupta-Kagan

In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care, but for decades family courts would not apply this precedent to non-offending parents in child protection cases. Without even citing Stanley, courts held that finding one parent unfit justified taking the child into foster care -- even when the other parent was fit and sought custody. A Michigan Supreme Court decision this past summer, In re Sanders, suggests that courts are now, more than forty years after it was decided, beginning to apply Stanley to protect fit parents' and children's right to stay together.

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Subsequent History Omitted, Joel Heller

The Supreme Court's decision in Shelby County v. Holder striking down part of the Voting Rights Act of 1965 has sparked debate over voting, race, history, and, surprisingly, footnotes. This Essay examines Westlaw's characterization of the Court's earlier decision upholding the VRA in South Carolina v. Katzenbach as "abrogated by Shelby County v. Holder," and uses that characterization as a lens to consider Westlaw's influence on the development of the law. Because Westlaw's "abrogated" label is both unwarranted and consequential, that proposed subsequent-history clause should be omitted.

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Progressive Property Moving Forward, Timothy M. Mulvaney

In response to Ezra Rosser's article, The Ambition and Transformative Potential of Progressive Property, 101 Calif. L. Rev. 107 (2013), Timothy Mulvaney expresses more confidence than does Rosser in property's potential to serve a role in furthering a progressive society. If property is to serve in this role, however, Mulvaney suggests it is important to redesign and reinterpret property in accordance with three themes-transparency about property rules' value-dependence,humility about the reach of human knowledge and the mutability of our normative positions, and a concern for the socioeconomic identities of those affected by resource disputes-that underlie a broader set of writings than Rosser considers within the contours of "progressive property scholarship" and on which he offers some very preliminary impressions.

Published in 2013

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When God Spikes Your Drink: Guilty Without Mens Rea, Fredrick E. Vars

Professor Fredrick Vars criticizes the Supreme Court's recent decision in Metrish v. Lancaster. That case broadened the prohibition on introducing evidence of mental illness to negate intent in criminal cases. Because many states allow evidence of intoxication on intent, Professor Vars argues that it is illogical and unfair to prohibit evidence of mental illness.

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The Messy History of the Federal Eminent Domain Power: A Response to William Baude, Christian R. Burset

In this response to William Baude's article, Rethinking the Federal Eminent Domain Power, Christian Burset challenges Baude's claim that antebellum legislators, commentators, and judges uniformly refused to acknowledge a federal eminent domain power. Examining historical sources and case law, Burset highlights how changing political attitudes influenced historic beliefs about the ability of the federal government to condemn land within state boundaries.

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All in the Family: Interracial Intimacy, Racial Fictions, and the Law, D. Wendy Greene

Professor Wendy Greene highlights the continued importance of analyzing interracial relationships in the framework of the law in her review of Professor Angela Onwuachi-Willig's book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family. Professor Greene comments that given the Supreme Court's continued interest in cases involving marital and racial equality, a study of the legal history of interracial marriage in America, like that done by Professor Onwuachi-Willig, is both relevant and essential for understanding fundamental rights jurisprudence.

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Panopti-Moms, Melissa Murray

In her response to Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law (101 Calif. L. Rev. 609), Professor Melissa Murray compares contemporary criminal child molestation statutes to Jeremy Bentham's Panopticon, the all-observing watchtower that normalizes expectations of constant state surveillance. Arguing that the enforcement of child-molestation laws creates a near-constant sense of surveillance and encourages male and female caregivers to regulate their own behavior by adopting the identities favored by the state, Professor Murray illustrates how such well-meaning statutes may, in fact, perpetuate outdated gender stereotypes.

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Beyond Our Hearts: The Ecology of Couple Relationships, Holning Lau

In his review of Professor Angela Onwuachi-Willig's book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family, Professor Holning Lau extends Professor Onwuachi-Willig's analysis of how external support is instrumental to the success of relationships beyond multiracial couples. Arguing that ecological factors should play a larger role in policy discussions about marital relations, Professor Lau examines the debates surrounding same-sex marriage and the Healthy Marriage Initiative and concludes that policymakers should more carefully consider how exogenous circumstances affect the success of intimate relationships.

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Rehabilitating Juvenile Life Without Parole: An Analysis of Miller v. Alabama, Anna K. Christensen

Current CLR member Anna K. Christensen argues that the Supreme Court's decision in Miller v. Alabama stopped short of providing juvenile offenders with complete justice. By failing to categorically ban life sentences without the possibility of parole for juvenile offenders, Christensen asserts that the Court neglected an opportunity to fashion a sentencing system that acknowledges that while youth offenders are more apt to engage in risky behavior, they are also more responsive to rehabilitative services.

This case note is one of seven written by California Law Review members for Circuit's first case note program.

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Renee v. Duncan: The Perilous Pendulum of National Politics and a Pathway to Protecting Our Nation’s Most Vulnerable Youth, Sean Darling-Hammond

CLR Diversity Editor Sean Darling-Hammond analyzes the Ninth Circuit's decision in Renee v. Duncan-the latest in a series of cases challenging Department of Education regulations that disproportionately affect low-income students by allowing teachers enrolled in alternative certification programs to engage in instruction. Darling-Hammond ultimately advocates a novel solution to allow states to champion the rights of their most vulnerable citizens in light of restrictive standards of review of regulations in federal court.

This case note is one of seven written by California Law Review members for Circuit's first case note program.

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Is Twenty-Two Years Enough for the “Millennium Bomber”?: The Threat of Terrorism to Appellate Review of Sentences, Robin Kuntz

Robin Kuntz, a current CLR member, analyzes the implications of the Ninth Circuit's decision in United States v. Ressam, the first case in the jurisdiction involving the criminal sentencing of a terrorist under the advisory Sentencing Guidelines. Kuntz concludes that although the Guidelines do not offer a clear standard by which a court must set a criminal defendant's punishment, this is advantageous, particularly in cases involving terrorists like the "Millennium Bomber," the defendant at the heart of Ressam.

This case note is one of seven written by California Law Review members for Circuit's first case note program.

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A Second Shot at Proving Murder: Sacrificing Double Jeopardy for Rigid Formalism in Blueford v. Arkansas, Jalem Peguero

Third-year law student Jalem Peguero argues that the Supreme Court's decision in Blueford v. Arkansas trades constitutional protection for rigid formalism. The Blueford Court sanctioned the retrial of criminal defendants for offenses where a jury did not formally acquit the defendant; accordingly, Peguero claims, the Court prevented even clear statements by jury forepersons in open court about the finality of their decisions from operating to protect a defendant from "Double Jeopardy."

This case note is one of seven written by California Law Review members for Circuit's first case note program.

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Make the Patent “Polluters” Pay: Using Pigovian Fees to Curb Patent Abuse, James Bessen and Bessen J. Love

In the wake of several proposed patent reform bills, James Bessen and Professor Brian Love introduce an unconventional approach to discouraging so-called "patent trolls": levying a Pigovian tax on patent holders by increasing maintenance fees for older patents. The pair argue that establishing a tiered fee structure for registering patents will reduce the incentives that companies have to hold older patents for the mere sake of bringing infringement claims, and will thus curb patent abuse, all while encouraging new entrepreneurs to bring novel products to the market.

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Children Are Different: Bridging the Gap Between Rhetoric and Reality Post Miller v. Alabama, Ioana Tchoukleva

Current CLR member Ioana Tchoukleva examines the Supreme Court's decision in Miller v. Alabama, which prohibited mandatory sentences of life without parole for juvenile homicide offenders under the Eighth Amendment, and discusses the implications of the Court's holding on the future of juvenile rights.

This case note is one of seven written by California Law Review members for Circuit's first case note program.

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The Gross Confusion Deep in the Heart of University of Texas Southwest Medical Center v. Nassar, Brian S. Clarke

In this essay, Professor Brian Clarke examines the Supreme Court's various articulations of the proper standard for determining causation in employment discrimination cases. Professor Clarke then proposes a novel solution that the Court should adopt in its opinion in University of Texas Southwest Medical Center v. Nassar, in order to resolve its past ambiguous formulations and to bring clarity to this area of law.

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Drone Federalism: Civilian Drones and the Things They Carry, Margot E. Kaminski

The regulation of domestic drone use has been the subject of much media attention. In addition to how much domestic drones should be regulated, scholars and policymakers are debating a more complex question, which is who should regulate drones. In this Essay, Margot Kaminski, Executive Director of the Yale Information Society Project, suggests that civilian drone use should be regulated by states rather than the federal government. She argues that because civilian drone use implicates privacy issues that states have previously regulated through statutes and common-law torts, and because there is a tension between privacy and First Amendment concerns that states will navigate better than the federal government, state law should - at least for now - be the primary means of governing civilian drone overflights.

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The Laws of Spaceflight: A Guidebook for New Space Lawyers, Glenn Harlan Reynolds

In this Book Review, Professor Glenn H. Reynolds looks to both the past and the future of space law. Drawing from his experience co-authoring one of the first comprehensive legal texts on outer-space law and legal issues, Professor Reynolds provides an expert's evaluation of The Laws of Spaceflight: A Guidebook for New Space Lawyers.

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American Indian Legal Scholarship and the Courts: Heeding Frickey’s Call, Matthew L.M. Fletcher

This piece expands upon the author's comments at the Henderson Center's Fall 2012 Symposium, "Heeding Frickey's Call: Doing Justice in Indian Country."

Michigan State University College of Law Professor Matthew L.M. Fletcher examines the late Berkeley Law Professor Philip P. Frickey's call for more grounded and empirical American Indian legal scholarship. Fletcher analyzes the state of American Indian legal scholarship that led to Frickey's call and the impact that Frickey's call has had since.

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Race, Descent, and Tribal Citizenship, Bethany R. Berger

This piece expands upon the author's comments at the Henderson Center's Fall 2012 Symposium, "Heeding Frickey's Call: Doing Justice in Indian Country."

Connecticut School of Law Professor Bethany R. Berger looks at the relationship between descent-based tribal citizenship requirements and race or racism. She argues that tribal citizenship laws that require Indian or tribal descent are generally neither the product nor the source of racism in federal Indian law and policy, and instead are moral, legal, and consistent with federal and international norms.

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The Twenty-First Century Fingerprint: Previewing Maryland v. King, Keagan D. Buchanan

Current CLR member Keagan D. Buchanan previews the Supreme Court's upcoming decision in Maryland v. King, which will decide whether Maryland's expansion of its DNA collection and analysis procedures to felony arrestees is constitutional.

This note is one of seven written by California Law Review members for Circuit's first annual Case Note Review.

Published in 2012

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The Only Way to End Racialized Gender Violence in Prisons is to End Prisons: A Response to Russell Robinson’s “Masculinity as Prison”, Dean Spade

Seattle University School of Law Associate Professor Dean Spade responds to Russell Robinson's "Masculinity As Prison: Sexual Identity, Race, and Incarceration."

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Harlan on My Mind: Chief Justice Roberts and the Affordable Care Act, Timothy P. O'Neill

John Marshall Law School (Chicago) Professor Timothy P. O'Neill explains why the Supreme Court's resolution of the constitutional challenge to the Patient Protection and Affordable Care Act proves that Thayerism is alive and well.

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Solving the McCleskey Dilemma: Embracing Racial Diversity in Schools, Michael McIntosh

Michael McIntosh, law clerk to the Honorable Albert Diaz, U.S. Court of Appeals for the Fourth Circuit, argues that race-based admissions policies represent one means of eliminating unconscious racial bias.

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The Costs and Elusive Gains of Creating Complementarities Between Party and Popular Democracy: A Response to Ethan J. Leib & Christopher S. Elmendorf, Bertrall L. Ross II

Bertrall Ross, Assistant Professor of Law at the University of California, Berkeley, School of Law, responds to Ethan Leib and Christopher Elmendorf's article Why Party Democrats Need Popular Democracy and Popular Democrats Need Parties.

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Remembrance and Renewal, Dave Frohnmayer

Dave Frohnmayer '67, the 2011 California Law Review Alumnus of the Year, reflects on the meaning of CLR membership in an essay adapted from his Alumni Banquet address.

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Sterilization and Minors with Intersex Conditions in California Law, Anne Tamar-Mattis

Anne Tamar-Mattis, Executive Director of Advocates for Informed Choice and a Berkeley Law graduate, examines the legal rights of intersex children facing forced sterilization.

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The Drug Dealer, the Narc, and the Very Tiny Constable: Reflections on United States v. Jones, Caren Myers Morrison

Caren Myers Morrison of Georgia State University argues that United States v. Jones represents a missed opportunity to bring a measure of clarity to an uncharted area of Fourth Amendment jurisprudence.

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The Partisan Connection, Russell Muirhead and Nancy L. Rosenblum

Note: The following article responds to Why Party Democrats Need Popular Democracy and Popular Democrats Need Parties by Ethan J. Leib & Christopher S. Elmendorf, 100 Calif. L. Rev. 69

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Excavating Subtexts and Integrating Humanity in Civil Procedure, Bret Asbury

This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, "Excavating and Integrating Law and Humanities in the Core Curriculum," on January 5, 2012.

I am currently in my fifth year as a law professor at Drexel University, where I teach Civil Procedure, Jurisprudence, and a Literature & the Law seminar. While Jurisprudence and Literature & the Law are fields arising directly out of the humanities, Civil Procedure-what with its heavy reliance on the Federal Rules and frequently unambiguous statutes-appears at first blush to exist in a separate realm, one of cold calculation and indifference to the human condition. It is perhaps for this reason that I had dispirited memories of Civil Procedure when I first set out to teach it five years ago. But as I have grappled with the material and evolved as a teacher over time, I have come to believe that the humanities can offer Civil Procedure a great deal, not only in terms of making this notoriously dry subject more engaging for my students, but in helping them to master the material as well.

Though I teach all three of my courses through a humanistic lens, I would like to highlight two humanities-inspired techniques that I have found to be particularly useful in teaching Civil Procedure. The first pedagogical technique is "close reading," the method of pausing over and examining selected words, phrases, sentences, and syntax in order to reveal subtextual meanings that might not initially be apparent. I have found this technique particularly useful in teaching personal jurisdiction, perhaps the most vexing of the topics customarily covered in an introductory Civil Procedure course. The second pedagogical technique I would like to highlight relates to my broader framing of Civil Procedure. Instead of teaching the course piecemeal, as a series of discrete topics, I endeavor to frame the whole of Civil Procedure as a clash of two competing grand narratives-the quest for justice versus the desire for courts to adjudicate disputes as quickly and inexpensively as possible. These two objectives are often at odds, and as we read cases, Rules, and statutes, I go to great lengths to underscore the struggle judges, drafters, and legislators necessarily face in resolving tensions between the two.

In this Essay, I will elaborate on how I employ these humanities-based techniques-one derived from literary criticism and the other aimed at establishing the humanistic struggle that I believe lies at the core of Civil Procedure-and the positive effects they have had on my students' understanding of this challenging subject.

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Teaching Humanities Softly: Bringing a Critical Approach to the First-Year Contracts Class Through Trial and Error, Ariela J. Gross

This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, "Excavating and Integrating Law and Humanities in the Core Curriculum," on January 5, 2012.

I began teaching Contract Law in 1997, and because I wanted my students to benefit from an interdisciplinary approach to the subject, I chose a wonderful casebook edited by Amy Kastely, Deborah Waire Post, and Sharon Hom, called Contracting Law. Rather than the sterile doctrinal analysis of the traditional 1L classroom, I hoped to have my students gain an appreciation of the human dimension of legal problems and the encounters between ordinary individuals and legal institutions. My own research at the time explored the intersection of law and local culture to uncover the way people made race in their everyday lives. I hoped that in the classroom we could similarly think about law in its cultural-historical context. Likewise, I thought that only by situating law in its cultural-historical context could students gain enough purchase to be critical of the legal status quo.

I think it is fair to say that Contracting Law was the first (and it may be the only) critical race feminist Contracts casebook. It is also the only Contracts casebook that I know of that attempts to engage the humanities. It is filled with poems and excerpts of novels, in addition to law review articles from a variety of viewpoints. It didn't even look like other casebooks. It was bigger and heavier and the typeface was large enough to read easily. My students hated it.

They hated that it was different. They hated that there were things in it that were "not law." They hated that it appeared to have a perspective. And they hated every time our class appeared to depart from "black letter" law. The literary excerpts elicited not empathy but derision. When assigned O. Henry's "Gift of the Magi," and John Elemans' "The Gift Economy," they did not probe deeper into the bargain-gift distinction. Assigned a chapter from The Grapes of Wrath, they did not make the connection between farmers in the Great Depression and the plaintiffs in a promissory estoppel case, Standish v. Curry. Reading bell hooks' "Homeplace: A Site of Resistance," and Denise Chavez's "The Wedding" did not make them think more carefully about the emotional distress arising from contract breach and the exclusion of emotional distress damages. Student evaluations said things like, "I didn't pay $35,000 a year to read poetry." Clearly, I was doing something wrong. My ambition to integrate a humanities approach to introductory legal studies had obviously fallen flat.

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Guilt, Greed, and Furniture: Using Mel Brooks’s The Twelve Chairs to Teach Dying Declarations, Lenora Ledwon

This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, “Excavating and Integrating Law and Humanities in the Core Curriculum,” on January 5, 2012.

When I teach the dying declarations hearsay exception in my Evidence course, I always show the opening scene from Mel Brooks's darkly comedic film, The Twelve Chairs. A film clip is a particularly dense piece of storytelling, in that it presents story information in a visually and aurally rich manner (including such varied aspects as images, colors, tone, soundtracks, special effects, edits, montage, etc.). Yet, we are able to take in and process a whole series of nuanced and complex messages in a film clip in a relatively efficient manner. Simply put, we are good at "reading" visual stories from television and film. Further, showing the excerpt from The Twelve Chairs not only is fun, it's good learning pedagogy.

This short scene enhances class discussion in three principal ways. First, the scene serves as an engaging mini-review of the elements of the hearsay exception for dying declarations. Second, it serves as a springboard for the class to think critically and articulate some unspoken assumptions underpinning the rationale for the rule (the short scene raises issues about our assumptions governing family dynamics, gender, class, politics, and religion, among other matters) and consider the possibility of drafting a different (and perhaps better)rule. , Third, the nature of the example (a film clip, and a comedic one at that) surprises and delights the students who are used to the usually bleak and violent fact patterns in many evidence casebooks. Thus, their attention level is high and they are very engaged in the analysis. A more full discussion of each of these three aspects follows.

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Role, Identity, and Lawyering: Empowering Professional Responsibility, Natasha Martin

This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, "Excavating and Integrating Law and Humanities in the Core Curriculum," on January 5, 2012.

The Professional Responsibility course has the potential to have the greatest impact on our students' futures in the profession. Paradoxically, however, it remains one of the most undervalued courses in most law school curricula. The complexity of teaching Professional Responsibility is well documented by scholars. Most teachers in this area, novices and veterans alike, acknowledge the challenge of teaching a course whose subject matter and application is so deeply personal for the students. This course remains challenging due in part to the competing goals of teaching students issue resolution using the law governing lawyers and fostering understanding of the normative values that underlie the regulations. Of course, I want my students to gain command of the standards that govern the legal profession. Reducing the course to a rules-only venture, however, excises much that remains vital to their futures as lawyers. I aim to bring harmony to the divergent roles of lawyers as fiduciaries for clients, officers of the court, and individuals with personal identities and interests.

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Law School for Poets, Melissa Murray

This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, "Excavating and Integrating Law and Humanities in the Core Curriculum," on January 5, 2012.

Like many who attend law school, I was an undergraduate history major. The humanities, my college pre-professional advisor assured me, were ideal preparation for the rigors of law school. I believed the hype. Three years later, on my first day of Contracts, my blind faith in the inherent compatibility of the humanities and legal education was rewarded with a sinking feeling that would, in time, give way to nausea. I had been duped. I had envisioned exuberant discussions led by a pipe-smoking, tweed-jacketed professor about the great moments in the history of contract law. Instead, the class began with the professor (sans pipe and tweed jacket) scrawling the Coase Theorem on the chalkboard. There were numbers. I felt the bile rising in my throat.

Although I learned to deal with the numbers, I could not help feeling that something was missing from the experience. Where was the social and historical context that could illuminate these doctrines? As we marched methodically through the substance of each course, we never stopped to dwell on the connections that linked cases that were thematically distinct, but connected contextually and chronologically.

Though it would have been easy to submit to this standard law school pedagogy, I did not swallow my misgivings and fall in line. I did not go gently into that good night! I became a law professor, and I vowed to find a way to reach my fellow poets, artists, and historians.

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Incorporating Literary Methods and Texts in the Teaching of Tort Law, Zahr K. Said

This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, "Excavating and Integrating Law and Humanities in the Core Curriculum," on January 5, 2012.

Tort law is frequently taught in terms of economic concepts: efficiency, capture, cost distribution, risk allocation, and so on. Alternatively, or in parallel, a philosophical perspective may wend its way into the first-year tort curriculum through discussions of distributive and corrective justice. Literature, however, is comparatively under-investigated as an arena for tort pedagogy and for first-year courses in the legal curriculum generally. Where literature tends to appear in law school, it most frequently does so in the form of stand-alone law-and-literature classes, which usually focus heavily on literature. For three years, I taught such a course at the University of Virginia School of Law. In that class, I continually tried to teach literary texts in a way that juxtaposed them with live legal issues. Still, the emphasis was, by and large, on literature, rather than on law. By contrast, in teaching a first-year tort law course at the University of Washington School of Law this year, I have explicitly used literature to aid and amplify legal analysis. The emphasis has been on law, rather than on literature. Nonetheless, literary texts and methods helped my students investigate how the law conceives of, and expresses, duties and losses among parties. My approach sought both to incorporate and to move beyond what Jane Baron has called, in characterizing aspects of first-generation law-and- literature scholarship, the "humanist" and "narrative" schools. Instead, the course drew on several diverse strands of law-and-literature methodology and it incorporated literary texts and methods into discussions of case law and legal policy to produce analysis that is deeply interdisciplinary. Content and methodology, to the extent they can be satisfactorily decoupled, informed my teaching of Torts in separate ways. First, I incorporated a central literary text that accompanied more traditional legal materials. Second, I required students to engage in close reading and I helped them theorize the act of reading itself. By emphasizing the textually mediated nature of the cases-both as a function of common law's system of authority through analogy, and as a function of the casebook editors' choices-I hope to have made clear to students that this is a new type of reading they are doing in law school, and that they are learning to think in new ways. In growing acculturated to legal analysis, law students are learning not just a new language, but a new awareness of how and why they read the way they do.

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Integrating Humanities into Family Law and the Problem with Truths Universally Acknowledged, Carol Sanger

This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, "Excavating and Integrating Law and Humanities in the Core Curriculum," on January 5, 2012.

I spend a full month on marriage in Family Law, and I use a fair range of what I'll call "extrinsic evidence" from the humanities. Because there is so much one could use, I am fairly strict with myself about what I do use. It seems important that when we take the time to introduce new materials, it should not be just a matter of word association football ("this novel reminds me of this case"), but rather that the materials connect to larger themes around which the doctrinal topics are wrapped or from which legal rules emerge. In Family Law these themes include the relation between family and market structures; Family Law as a reflection of contemporary social values on race, gender, and everything else; constitutional limitations on the regulation of intimate relationships; and the politics of Family Law and law reform. Connection to these larger themes provides one way of sorting and sifting the wealth of material from which one might choose.

However, I want to suggest a different reason why I am willing to take time away from doctrine and case law to spend it in the humanities. My suggestion is this: The humanities expand the imagination so that students can understand lives that are not like their own. The lives presented in novels or recounted in interviews may not be like the lives of our students because of when (or sometimes where) the two sets of lives are lived. They may not be like their own because of cultural differences, or because of the sometimes inexplicable nature of preferences and the choices that people make with regard to intimate relationships. This imaginative reach toward understanding different lives, times, or preferences is important in a number of ways.

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Dick Wolf Goes to Law School: Integrating the Humanities into Courses on Criminal Law, Criminal Procedure, and Evidence, David Alan Sklansky

This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, "Excavating and Integrating Law and Humanities in the Core Curriculum," on January 5, 2012.

My assignment for this symposium is to discuss ways of integrating the humanities into the core law school courses on criminal law, criminal procedure, and evidence-what you might call the Dick Wolf courses. In one respect the topic is trivial and almost meaningless. It is hard to come up with a sensible definition of the humanities that excludes much of what goes on all the time in a law school classroom: reading judicial decisions, trying to make sense of them, arguing about justice and fairness. We are a little in the position of Moliere's Bourgeois Gentleman, who discovered to his delight that he'd been speaking prose all his life without realizing it. There is another respect in which integrating the humanities into courses on criminal law, criminal procedure, and evidence, while not trivial, is or should be uncontroversial. Precisely because the law addresses philosophical questions and responds to historical developments-and precisely because the law is itself an object of philosophical speculation and is itself a part of history-it is natural to take explicit note of philosophy and history in class. It is hard to teach criminal law or evidence law successfully without mentioning Jeremy Bentham. It is hard to teach the right to counsel properly without mentioning the Scottsboro Boys; hard to make Terry v. Ohio fully comprehensible without discussing the urban riots of the late 1960s and the Kerner Commission report; hard to do justice to the M'Naughten rule without at least touching on Daniel M'Naughten and the Chartists.

I am going to talk about integrating the humanities in a narrower sense: integrating the arts, and in particular literature and the performing arts. It's easier to do this in the Dick Wolf courses than in many other law school classes. Crime, policing, and trials are such staples of novels, plays, movies and television-even aside from the endlessly sprawling universe of Law & Order- that it is hard to think of much literature or dramatic art that doesn't touch, at least in passing, on criminal justice or trial procedure or both. Popular music, too, has a tendency to return again and again to issues of crime and punishment.

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Teaching Property Law and What It Means to Be Human, Rose Cuison Villazor

This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, "Excavating and Integrating Law and Humanities in the Core Curriculum," on January 5, 2012.

Why do I include films, art and novels in the study of property law? The reason for this, as I argue in this Essay, is quite simple. I contend that deploying these materials in the classroom deepens my students' understanding of property law. The study of property law, as scholars have noted, is essentially what it means "to be human." Indeed, one of the established conceptual views of property is that it is a system of law that "concern relations among people regarding control of valued resources." Through the use of movies, books, and paintings, I am able to delve more deeply into people's lives and relationships and the various factors that influenced their competing claims to property. Specifically, through these cultural media, I emphasize the role that different factors-social, cultural, historical, economic and legal-play in shaping people's interactions with each other regarding things that each contends to be her own. In other words, films, novels, and art, among others, highlight the human stories behind the cases and provide context to the conflicting sense of entitlement to property in the cases that students are learning. This deeper understanding about the legal issues and the forces that led to the property conflict help to prompt more robust discussions about property law.

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The Private Sector’s Pivotal Role in Combating Human Trafficking, Jonathan Todres

Human trafficking is big business, with industry estimates running in the billions of dollars annually. Much of that profit accrues to traffickers, illegal profiteers, and organized crime groups. However, the private sector-including legitimate businesses and industries-also reaps economic benefits, directly and indirectly, from the trafficking and related exploitation of persons. Despite these economic realities, the dominant approach to combating human trafficking has been to rely almost exclusively on governments and social services organizations to do the job. Little has been asked of the private sector. Two important bills-one adopted by the State of California and the otherintroduced in the U.S. House of Representatives-might signal the beginning of a change in the prevailing approach to combating human trafficking.

Part I of this Essay briefly discusses human trafficking and current responses to the problem. As Part I reveals, despite the gravity of the problem, the private sector has been largely overlooked to date. Part II then looks specifically at the value of and rationale for private sector involvement in antitrafficking efforts. The discussion in Part II implicates a much broader debate in the literature on corporate social responsibility.9 I explore that literature in greater depth in a forthcoming article and instead focus in this shorter Essay on sketching out what the private sector could add to anti-trafficking efforts. Given that private sector involvement offers unique benefits to anti-trafficking initiatives, Part III explores governmental means of fostering private sector engagement in the fight against human trafficking. Finally, in Part IV, this Essay returns to the California Transparency Act-the first significant law aimed at spurring private sector efforts to stop human trafficking-to look at what lessons might be drawn from early responses to the new law.

Published in 2011

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Sexual Epistemology and Bisexual Exclusion: A Response to Russell Robinson’s “Masculinity as Prison: Race, Sexual Identity, and Incarceration”, Michael Boucai

In an effort to curb sexual assault behind bars, the Los Angeles County Jail currently houses inmates deemed homosexual and transgender in a special unit called "K6G." Professor Russell Robinson's Article, Masculinity as Prison: Race, Sexual Identity, and Incarceration, challenges this policy on a number of grounds. I focus in this Response on just two of Robinson's objections. First I affirm Robinson's proposal that carceral segregation programs, if they are to persist, will more effectively protect queer inmates from sexual assault if they do not fixate exclusively on queer identity. Homosexuality's complicated social epistemology, notoriously an "epistemology of the closet," compels this conclusion. I then reflect on some possible reasons (not necessarily justifications) for K6G's categorical exclusion of people who claim a bisexual identity. This exclusion is one of several aspects of the Jail's segregation policy that Robinson criticizes for disadvantaging individuals who diverge from a race- and class-specific stereotype of "the homosexual."

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Inside Out, Elizabeth F. Emens

Russell Robinson has done it again. With Masculinity as Prison: Sexual Identity, Race, and Incarceration, he has given us another provocative Article, which illuminates a phenomenon in the world and, indirectly, in ourselves.

The Article represents much of what generally makes Robinson's work so compelling. First, he writes about tremendously complex subjects and attends to their many complexities in remarkably lucid prose. Second, despite his critical perspective, he does not hesitate to make prescriptive arguments. In this Article, he even ventures into the hallowed ground of constitutional argument, something he has not done since his first article on race-based casting. Third, Robinson is not afraid to offend people by taking controversial positions, yet for the most part he does not seem to court controversy. Finally, he manages to bridge multiple modes of scholarly writing, employing diverse methodologies to analyze problems rigorously and to transform readers' perspectives along the way. For example, Robinson often brings together empirical scholarship- whether extant social science data or his own empirical investigations-with narrative legal scholarship. Although this Article omits the personal narratives that sometimes characterize his writing, it is replete with evocative material from the characters he interviewed.

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Standing to Sue in the Myriad Genetics Case, Megan M. La Belle

A short time ago, a three-judge panel of the United States Court of Appeals for the Federal Circuit issued its decision in Ass'n for Molecular Pathology v. USPTO (Myriad Genetics), one of the most important patent cases in recent history. The Myriad case addresses the controversial question whether isolated human genes related to breast and ovarian cancer can be patented. The case has garnered significant attention from various industries, the Department of Justice, the legal academy, the media, and the public. Features on the lawsuit have appeared in the New York Times, Washington Post, Wall Street Journal, and Los Angeles Times, and approximately forty amicus briefs were filed with the court. So far, commentators and amici have focused primarily on the substantive legal issues: Should genes be patentable subject matter? How do gene patents impact medical research and health care? Do gene patents promote innovation as required by the Constitution? Yet, the Myriad case also raises important questions about the justiciability of patent declaratory judgment disputes that have received surprisingly little attention.

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Fundamental Fairness and the Path from Santobello to Padilla: A Response to Professor Bibas, Josh Bowers

Almost no one in the legal academy has written more (or better) about guilty pleas and plea bargains than Stephanos Bibas. It is, therefore, fitting that he should author one of the first articles on Padilla v. Kentucky-a guilty-plea decision that may be the most important opinion on the topic in a generation.

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Failing Failed States: A Response to John Yoo, James Thuo Gathii

In Fixing Failed States, John Yoo shows why intervening states that seek to massively transform the social, economic, and political framework of failed states aim to do too much and ultimately fail. Yoo proposes that the role of intervening states should be minimal-enforcing power-sharing agreements between competing groups within failed states, rather than seeking to massively transform them into parliamentary democracies. To give a fair reply to Yoo's well-argued essay, Part I will outline in some detail the major highlights of his argument and its rationale. In Part II, I will offer my response.

In my view, Yoo overstates the benefits of loosening the prohibition against the use of force and the rule that occupied countries be restored to full sovereignty. By proceeding primarily from a security perspective, he offers a military solution that risks exacerbating rather than resolving the problem of failed states. His argument would have been more powerful if it were backed up by persuasive evidence and case studies to support the efficacy of his proposals. Ultimately, I disagree with the means Yoo proposes to fix failed states.

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Tweeting to Topple Tyranny, Social Media and Corporate Social Responsibility: A Reply to Anupam Chander, Erika R. George

Tunisia. Egypt. Jordan. Bahrain. Yemen. Algeria. Syria. Libya. Iran. As the winds of popular protest blow across North Africa and the Middle East, authoritarian autocratic regimes around the region are anxious. They face increasing risk of removal due to political revolutions. New media plays an important role in the revolutions occurring across the region as activists use various forms of it to register their opposition, organize protests, and expose state abuses. Images of the self-immolation of Mohamed Bouazizi, the young Tunisian man who set himself alight in protest before a local government office, circulated in cyberspace before being broadcast by Middle East media corporation al-Jazeera. Observers credit his act, witnessed around the world, with sparking the Jasmine Revolution and leading to the removal of President Zine el-Abidine Ben Ali after twenty-three years in power. In Egypt, a Facebook page administered by a Google marketing executive helped mobilize a march of thousands to Tahrir Square in Cairo. Despite the government’s belated attempt to stop the protests by shutting off the Internet and using violence against protesters and journalists, Egyptian activists remained in the Square until President Hosni Mubarak resigned after thirty years in power. Syrian activists used Facebook to orchestrate opposition protests against the government of President Bashar al-Assad at the parliament in Damascus and at Syrian embassies around the world.11 And most recently, in Libya, activists and amateur citizen journalists opposed to the rule of Col. Muammar el Quadafi used Twitter to expose Quadafi’s violent acts of repression and the consequences of deepening conflict with the old regime. The spread of such uprisings—dubbed “Revolution 2.0” to highlight the importance of new media both in coordinating protesters and in developing social networks and strategies in advance of the uprisings—demonstrates that new media can play a crucial role in empowering pro-democracy protesters to start and sustain their movements.

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Does the Crime Fit the Punishment?: Recent Judicial Actions Expanding the Rights of Noncitizens, Aarti Kohli

5:00 a.m., July 2010: Immigration agents arrive at the home of Farhan Ezad, a thirty-five-year-old Pakistani national who has been living in the United States since the age of five. Agents place Ezad in handcuffs in front of his wife and three children, all U.S. citizens, and inform him that he is being deported based on a 1995 conviction for a fifteen dollar drug sale in his college dorm room. Despite having had no further brushes with the law since serving five years of probation for his offense, Ezad faces the prospect of separation from his family and forced return to a land that he barely knows.

Published in 2010

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Regulating Offensiveness: Snyder v. Phelps, Emotion, and the First Amendment, Christina Wells

Since 2005, the Reverend Fred Phelps and other members of the Westboro Baptist Church have outraged almost everyone by protesting near military funerals. In Snyder v. Phelps the Supreme Court will finally decide whether that outrage is actionable. Few people will lose sleep if the Court finds that the First Amendment allows Albert Snyder to sue the Phelpses for intentional infliction of emotional distress and invasion of privacy for protesting near his son's funeral. After all, their messages, including statements such as "Semper Fi Fags," "Thank God for Dead Soldiers," "America is Doomed," "God Hates the USA," "God Hates You," and "Pope in Hell" were objectionable and mean-spirited. Snyder must have viewed their speech as "an affront of the most egregious kind."

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Liability and the Health Care Bill: An “Alternative” Perspective, Amy Widman

The recently passed health care bill contains many provisions that deserve celebration. Improving access to care is an important first step. Enhancing patient safety and accountability is an important second step, one that proponents of medical malpractice reform often undermine with attempts to restrict the liability of health care providers through “litigation alternatives.” During the health care debate, these advocates frequently raised liability issues (couched in politicized rhetoric), despite studies that show civil litigation is protecting patient safety in the health care system now and will continue to play a significant role in the future.

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Right Problem; Wrong Solution, Joseph L. Hoffmann and Nancy J. King

For the Great Writ of habeas corpus, these are the best of times and the worst of times.

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Professionalism and Power: Flawed Decision Making by the OLC Exposes Decision Making by the OLC Exposes a Bar That is Losing Its Moxie, Joseph Lavitt

The debate about what the OLC got wrong is over. It is time to consider what went wrong with the OLC.

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Self-Represented Litigants in Family Law: the Response of California’s Courts, Bonnie Hough

There is “a unity of interest between the courts and the public with respect to assistance for self-represented litigants. Lack of legal assistance is clearly an enormous barrier for the public." In response to this critical situation, the Task Force has developed a comprehensive statewide plan which recommends a full menu of approaches to meeting the needs of the public and the courts.

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Remarks of Jeff Bleich at the First Annual Conference on the California Supreme Court, Hon. Jeff Bleich

I believe there are two areas where reform would improve the quality of advocacy by the California Supreme Court Bar. First, California would benefit from developing a team of advocates within its Solicitor General's office to routinely represent the State before the California Supreme Court. Second, California law schools should consider developing a clinic dedicated to helping identify good cases for state supreme court review and ensuring those cases are well presented.

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The Preventive Dilemma: A Reply to David Cole, Robert Chesney

Cole's desire to reconcile enhanced protections for civil liberties with both the short- and long-term interests of security is laudable. Whether his particular prescriptions are desirable, however, is another matter.

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The Elkins Task Force: Meeting the Challenges of Family Law in California’s Courts, Laurie Zelon

The Elkins Family Law Task Force is one example of the various, self-initiated improvement efforts that California’s court system has undertaken to increase access to justice and improve services in the judicial branch.