Here is a look at some of the most recent scholarship from UC Davis School of Law faculty from the Social Science Research Network's Legal Scholarship Network. Click through the links to download the works.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"Productive Tensions: Women's NGOs, the 'Mainstream' Human Rights Movement, and International Lawmaking" 
Non-State Actors, Soft Law and Protective Regimes: From the Margins (Cecilia M. Bailliet ed., Cambridge University Press, 2012).
UC Davis Legal Studies Research Paper No. 422

KARIMA BENNOUNE, University of California, Davis - School of Law

Non-govermental organizations (NGOs) are among the most discussed non-state actors involved in the creation, interpretation, and application of international law. Yet, scholars of international law have often over looked the critical issue of diversity among NGOs, and the differing stances they may take on key international law issues and controversies. This oversight exemplifies the ways in which international law scholarship sometimes takes overly unitary approaches to its categories of analysis. Feminist international law questions the accuracy of such approaches. When one unpacks the "NGO" category, one often discovers multiple NGO constituencies reflecting conflicting concerns and perspectives. Hence, feminist international law theories should reflect a view of NGOs as international lawmakers that is equally complexified.

This chapter will focus on one example of such NGO diversity, namely the inter-NGO dynamic sometimes found between women's human rights NGOs and what is often termed the "mainstream" human rights movement. These relationships have long been complicated . At times these constituencies are allies with the same international law priorities. At other times they are opponents or at least involved in what might be described as a tense dialogue. Sometimes the "mainstream" human rights groups become themselves the targets of the lobbying of women's human rights groups. Indeed, women's human rights NGOs and other human rights NGOs may have very different views of particular inter­ national law questions . Over time, however, the women's rights groups have often - though not always - prevailed on human rights groups to evolve their view of international law in a more gender-sensitive direction.

This dialectical relationship between women's groups and other human rights groups has played out in numerous arenas, including in the 1990s debate over the definition of torture, and, most recently in regard to the need to (also) respond to atrocities by fundamentalist non-state actors in the context of critiquing the "war on terror:' In each instance, women's groups and other human rights NGOs have some­ times had uneasy, multifaceted and shifting relationships that have shaped critical international lawmaking processes and debates. Groups within both of those broad categories of NGOs have also taken diamet­rically opposed positions at times. All of these sets of complexities, these putatively productive tensions, have both enriched and rendered more difficult the role of NGOs as lawmakers, and must be reflected in any meaningful theorizing of the issue.

What then should these layered inter-NGO dynamics tell us about our conception of "NGO" as a category of analysis, and about the role of NGOs in the creation and practice of international law? What can analyzing these dynamics tell us about how progress can most success­ fully be made toward a feminist reshaping of international law? This chapter will consider each of these questions in light of several case studies.

I come at this subject from a range of vantage points, having been an Amnesty International legal adviser, having also worked closely with a range of women's NGOs, and currently as an academic. Hence, I will try to look at these questions at the intersection of both academic and these various practitioner perspectives. To that end, this chapter begins with a brief overview of NGOs and their roles on the inter­national law stage, as described in the literature. An examination of the categories used here follows, interrogating the meaning of the terms, "women's human rights NGO" and "mainstream human rights NGO." Subsequently, the chapter reviews the case studies drawn from practice, first with regard to NGO interaction concerning the definition of torture, and then bearing on responses to the "war on terror." It then concludes with a brief application of the lessons learned from these case studies about the meaning of NGO participation in international lawmaking.

"Administering Section 2 of the VRA After Shelby County" 
Columbia Law Review, vol. 115 Forthcoming
UC Davis Legal Studies Research Paper No. 372

CHRISTOPHER S. ELMENDORF, University of California, Davis - School of Law
Email: cselmendorf@ucdavis.edu
DOUGLAS M. SPENCER, University of Connecticut, School of Law
Email: dspencer@berkeley.edu

Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court's evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases - each relying on data from a different set of elections - are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.

"Bait, Mask, and Ruse: Technology and Police Deception" 
128 Harvard Law Review Forum 246 (2015)
UC Davis Legal Studies Research Paper No. 423

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

Deception and enticement have long been tools of the police, but new technologies have enabled investigative deceit to become more powerful and pervasive. Most of the attention given to today's advances in police technology tends to focus either on online government surveillance or on the use of algorithms for predictive policing or threat assessment. No less important but less well known, however, are the enhanced capacities of the police to bait, lure, and dissemble in order to investigate crime. What are these new deceptive capabilities, and what is their importance?

"Richard Delgado's Quest for Justice for All" 
Law and Inequality: A Journal of Theory and Practice, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 421

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This is a contribution to a symposium celebrating Richard Delgado's illustrious career in law teaching. This commentary offers some thoughts on Delgado's contributions to pushing the boundaries of Critical Race Theory - and legal scholarship generally - in seeking to create a more just society. This ambitious program has been the overarching theme to his scholarly agenda throughout his career.

"Leaving No (Nonmarital) Child Behind" 
48 Family Law Quarterly 495 (2014)
UC Davis Legal Studies Research Paper No. 414

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

Almost ten years, in 2005, I wrote a piece for the Family Law Quarterly describing the legal status of children born to same-sex couples. This Essay explores the some of the positive and some of the worrisome developments in the law since that time. On the positive side, today many more states extend some level of protection to the relationships between nonbiological same-sex parents and their children. Moreover, in many of these states, lesbian nonbiological parents are now treated as full, equal legal parents, even in the absence of an adoption.

There are other recent developments, however, that should be cause for concern. Specifically, this Essay considers recent legislative proposals that contract (rather than expand) existing protections for functional, nonmarital parents. I conclude by arguing that while advocates should celebrate the growing availability of marriage for same-sex couples, they must also be careful not to push legislative efforts that inadequately protect the large and growing numbers of families that exist outside of marriage.

"Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges" 
UC Davis Legal Studies Research Paper No. 420

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu
JOAN HEIFETZ HOLLINGER, University of California, Berkeley - School of Law
Email: joanhol@law.berkeley.edu

This Amici Curiae brief was filed in the Supreme Court on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases.

The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the "optimal" setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.

"Fracking and Federalism: A Comparative Approach to Reconciling National and Subnational Interests in the United States and Spain" 
Environmental Law, Vol. 44, No. 4, 2014
UC Davis Legal Studies Research Paper No. 424

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Hydraulic fracturing presents challenges for oversight because its various effects occur at different scales and implicate distinct policy concerns. The uneven distribution of fracturing's benefits and burdens, moreover, means that national and subnational views regarding fracturing's desirability are likely to diverge. This Article examines the tensions between national and subnational oversight of hydraulic fracturing in the United States, where the technique has been most commonly deployed, and Spain, which is contemplating its use for the first time. Drawing insights from the federalism literature, this Article offers recommendations for accommodating the varied interests at stake in hydraulic fracturing policy within the contrasting governmental systems of these two countries.

"Access to Justice in Rural Arkansas" 
UC Davis Legal Studies Research Paper No. 426

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Independent
Email: cmckinney@QGTlaw.com
JULIANA FEHRENBACHER, Independent
Email: jfehr@ucdavis.edu
AMY DUNN JOHNSON, Independent
Email: adjohnson@arkansasjustice.org

This policy brief, written for and distributed by the Arkansas Access to Justice Commission, reports two sets of data related to the shortage of lawyers in rural Arkansas. The first set of data regards the number of lawyers practicing in each of the state's 25 lowest-population counties and the ratio of lawyers per 1,000 residents in each of those counties. This data is juxtaposed next to the poverty rate and population of each of county.

The policy brief also reports the results of a survey of Arkansas lawyers and law students, the latter from both the University of Arkansas Fayetteville Law School and the University of Arkansas at Little Rock/Bowen School of Law. These surveys probed respondents' attitudes toward rural practice, among other matters. The policy brief reports a summary of those responses. Finally, the policy brief reports on a 2015 legislative proposal aimed at alleviating the shortage of lawyers serving rural Arkansans.

This policy brief is a forerunner to a fuller, academic analysis of these and other data sets relevant to the geography of access to justice in Arkansas. That analysis will appear in an article that will be published by the University of Arkansas at Little Rock Law Journal (forthcoming 2015). The authors anticipate that these investigations in Arkansas may provide a model for other states concerned about the shortage of lawyers working in rural areas.

"Using Taxes to Improve Cap and Trade, Part I: Distribution" 
75 State Tax Notes 99 (2015)
UC Davis Legal Studies Research Paper No. 425

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

In this article, the first of a series, we analyze the distributional issues involved in implementing U.S. state level cap-and-trade regimes. Specifically, we will argue that the structure of California's AB 32 regime will unnecessarily disadvantage lower-income Californians under the announced plan to give away approximately half of the permits to businesses and pollution-emitting entities.

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Social Responsibility in India" 
The Conference Board Director Notes No. DN-V6N14 (August 2014)
UC Davis Legal Studies Research Paper No. 399

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu
SHRUTI RANA, University of Maryland
Email: shrutirana@yahoo.com

In an era of financial crises, widening income disparities, and environmental and other calamities linked to some corporations, calls around the world for greater corporate social responsibility (CSR) are increasing rapidly. Unlike the United States and other major players in the global arena, which have largely emphasized voluntary approaches to the adoption and spread of CSR, India has chosen to pursue a mandatory CSR approach. This report discusses India's emerging CSR regime and its potential strengths and weaknesses.

"The Advent of the LLP in India" 
Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman and Mark J. Loewenstein eds.) (Edward Elgar Publishing, 2015, Forthcoming)
UC Davis Legal Studies Research Paper No. 408

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

In 2008, India passed a ground-breaking law to introduce the Limited Liability Partnership form into Indian business law. The Indian LLP Act was the first major introduction of a new business form in India in over 50 years. While the partnership and corporate forms (i.e. companies under the Indian Companies Act) have long flourished in India, both forms have presented challenges for certain Indian businesses. The Indian government's impetus for the LLP Act was to develop a business association form that could better meet the needs of entrepreneurs and professionals with respect to liability exposure, regulatory compliance costs and growth. This chapter begins with a broad overview of the political and legislative process which led to the adoption of the LLP Act. It then addresses the critical aspects of the Indian LLP Act, and analyzes some of the challenges and uncertainties that may derail the success of the LLP form.

"Reed v. Town of Gilbert: Signs of (Dis)Content?" 
NYU Journal of Law & Liberty, Forthcoming
UC Davis Legal Studies Research Paper No. 403

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law
Email: aabhagwat@ucdavis.edu

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert's sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit's resistance to finding Gilbert's ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine - that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn't legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

"Brand New World: Distinguishing Oneself in the Global Flow" 
UC Davis Law Review, Vol. 27, No. 2, December 2013
UC Davis Legal Studies Research Paper No. 410

MARIO BIAGIOLI, University of California, Davis - School of Law
Email: mbiagioli@ucdavis.edu
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Ancient physicians engaged in property disputes over the seals they impressed on the containers of their medications, making brand marks the oldest branch of intellectual property. The antiquity of brand marks, however, has not helped their proper understanding by the law. While the conceptual and historical foundations of copyrights and patents continue to be part and parcel of contemporary legal debates, the full history and theorizing on business marks is largely external to trademark doctrine. Furthermore, with only a few and by now outdated exceptions, whatever scholarship exists on these topics has been performed mostly not by legal scholars but by archaeologists, art historians, anthropologists, sociologists, and historians of material culture. Such a striking imbalance suggests that the law is more eager to assume and state what trademarks should be rather than understand how they actually work today. Nor does the law often acknowledge the many different ways in which marks have always been deployed to distinguish both goods and their makers. This is not just a scholarly problem: given the extraordinary importance of brands in the global economy, the growing disjuncture between the way brands function in different contexts and cultures and trademark law's simplified conceptualization of that function has become a problem with increasingly substantial policy implications.

"Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule" 
Boston University Law Review, Vol. 94, No. 5, 2014
UC Davis Legal Studies Research Paper No. 411

GABRIEL J. CHIN, University of California, Davis - School of Law
Email: gjackchin@gmail.com

In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to "preclear" changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution's Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing - as well as from what little the Court has said - that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

"Wills Law on the Ground" 
UCLA Law Review, Vol. 62, 2015 Forthcoming
UC Davis Legal Studies Research Paper No. 404

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu

Traditional wills doctrine was notorious for its formalism. Courts insisted that testators strictly comply with the Wills Act and refused to consider extrinsic evidence to construe instruments. However, the 1990 Uniform Probate Code revisions and the Restatement (Third) of Property: Wills and Donative Transfers replaced these venerable bright-line rules with fact-sensitive standards in an effort to foster individualized justice. Although some judges, scholars, and lawmakers welcomed this seismic shift, others objected that inflexible principles provide clarity and deter litigation. But with little hard evidence about the operation of probate court, the frequency of disputes, and decedents' preferences, these factions have battled to a stalemate. This Article casts fresh light on this debate by reporting the results of a study of every probate matter stemming from deaths during the course of a year in a major California county. This original dataset of 571 estates reveals how wills law plays out on the ground. The Article uses these insights to analyze the issues that divide the formalists and the functionalists, such as the requirement that wills be witnessed, holographic wills, the harmless error rule, ademption by extinction, and anti-lapse.

"Can Human Embryonic Stem Cell Research Escape its Troubled History?" 
44 Hastings Center Report 7 (Nov.-Dec. 2014)
UC Davis Legal Studies Research Paper No. 409

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

In 2013 and 2014, three U.S.-based research teams each reported success at creating cell lines after somatic cell nuclear transfer with human eggs. This essay assesses the disclosures about how oocytes were obtained from women for each of the three projects. The three reports described the methods used to obtain eggs with varying degrees of specificity. One description, in particular, provided too little information to assess whether or not the research complied with law or other ethical norms. This essay then considers methodological transparency as an ethical principle. Situating the research within the ethical and moral controversies that surround it and the high-profile fraudulent claims that preceded it, the essay concludes that transparency about methodology, including the means of obtaining human cells and tissues, should be understood as an ethical minimum.

"Evidence of a Third Party's Guilt of the Crime that the Accused is Charged with: The Constitutionalization of the SODDI (Some Other Dude Did It) Defense 2.0" 
UC Davis Legal Studies Research Paper No. 401

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

Defense counsel have employed a version of the SODDI defense for decades. The late Johnny Cochran successfully employed the defense in the O.J. Simpson prosecution, and the legendary fictional defense attorney Perry Mason used the defense in all his cases.

However, in most jurisdictions there are significant limitations on the availability of the defense. In an 1891 decision, the United States Supreme Court announced that evidence of a third party's misconduct is admissible only if it has a "legitimate tendency" to establish the accused's innocence. Today most jurisdictions follow a version of the "direct link" test. Under this test, standing alone evidence of a third party's motive or opportunity to commit the charged offense is inadmissible unless it is accompanied by substantial evidence tying the third party to the commission of the charged crime. Moreover, the evidence that the accused proffers to support the defense must satisfy both the hearsay and character evidence rules. If the defense offers out-of-court statements describing the third party's conduct, the statements must fall within an exemption from or exception to the hearsay rule. If the defense attempts to introduce evidence of the third party's perpetration of offenses similar to the charged crime, the defense must demonstrate that the evidence is admissible on a noncharacter theory under Federal Rule of Evidence 404(b)(2).

However, a new version of the SODDI defense has emerged - SODDI 2.0. When the defense relies on this theory, the accused makes a more limited contention. The defense does not contend that reasonable doubt exists because there is admissible evidence of the third party's guilt. Rather, the defense argues that there is reasonable doubt because the police neglected to investigate the potential guilt of a third party who was a plausible person of interest in the case. Two 2014 decisions, one from the Court of Appeals for the Second Circuit and another from an intermediate Utah court, approved this version of the defense. Even more importantly, both courts ruled that the trial judge violated the accused's constitutional right to present a defense by curtailing the accused's efforts to develop the defense at trial.

The advent of this new version of the defense is both significant and controversial. The development is significant because the defense can often invoke this version of the defense when the restrictions on the traditional SODDI defense preclude the accused from relying on the traditional defense. As the two 2014 decisions point out, when the defense invokes the 2.0 version of the defense, the hearsay rule does not bar testimony about reports to the police about the third party's misconduct. Under the 2.0 version of the defense, those reports are admissible as nonhearsay to show the reports' effect on the state of mind of the police officers: putting them on notice of facts that should have motivated them to investigate the third party. Similarly, when the defense relies on the 2.0 version of the defense, the prosecution cannot invoke the character evidence prohibition to bar testimony that the third party has committed offenses similar to the charged crime. The prohibition applies only when the ultimate inference of the proponent's chain of reasoning is that the person engaged in conduct consistent with his or her character trait. In this setting, the prohibition is inapplicable because the ultimate inference is the state of mind of the investigating officers.

Since the restrictions on the new version of the SODDI defense are much laxer than those on the traditional defense, the advent of this defense is also controversial. Are the inferences from the 2.0 version of the defense so speculative that as a matter of law, the defense is incapable of generating reasonable doubt? Moreover, is it wrong-minded to recognize a version of the defense with such minimal requirements when the prevailing view is that traditional version is subject to much more rigorous requirements?

This article addresses those questions and concludes that it is legitimate to recognize the SODDI defense 2.0. In the past few decades, there has been a growing realization of the incidence of wrongful convictions. In the late Johnny Cochran's words, some of those convictions were a product of a "rush to judgment" by the police. The recognition of the SODDI defense 2.0 will provide a significant disincentive to such premature judgments by police investigators.

"Should Arrestee DNA Databases Extend to Misdemeanors?" 
Recent Advances in DNA & Gene Sequences, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 406

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court's 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.

"Racial Profiling in the 'War on Drugs' Meets the Immigration Removal Process: The Case of Moncrieffe v. Holder" 
University of Michigan Journal of Law Reform, Forthcoming
UC Davis Legal Studies Research Paper No. 402

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This paper is an invited contribution to an immigration symposium in the Michigan Journal of Law Reform.

In 2013, the Supreme Court in Moncrieffe v. Holder rejected a Board of Immigration Appeals order of removal from the United States of a long-term lawful permanent resident based on a single criminal conviction involving possession of a small amount of marijuana. In so doing, the Court answered a rather technical question concerning the definition of an "aggravated felony" under the U.S. immigration laws.

Because the arrest and drug conviction were not challenged in the federal removal proceedings, the Court in Moncrieffe v. Holder did not have before it the full set of facts surrounding the state criminal prosecution of Adrian Moncrieffe. However, examination of the facts surrounding the criminal case offers important lessons about how the criminal justice system works in combination with the modern immigration removal machinery to disparately impact communities of color. By all appearances, the traffic stop that led to Moncrieffe's arrest is a textbook example of racial profiling.

This Article considers the implications of the facts and circumstances surrounding the stop, arrest, and drug crimination of Adrian Moncrieffe for the racially disparate enforcement of the modern U.S. immigration laws. As we shall see, Latina/os, as well as other racial minorities, find themselves in the crosshairs of both the modern criminal justice and immigration removal systems.

Part II of the Article provides details from the police report of the stop and arrest that led to Adrian Moncrieffe's criminal conviction. The initial stop for a minor traffic infraction is highly suggestive of a pretextual traffic stop of two Black men on account of their race. Wholly ignoring the racial tinges to the criminal conviction, the U.S. Supreme Court only considered the conviction's immigration removal consequences - and specifically the Board of Immigration Appeals' interpretation of the federal immigration statute, not the lawfulness of the original traffic stop and subsequent search.

The police report describes what appears to be a routine traffic stop by a police officer who, while apparently trolling the interstate for drug arrests in the guise of "monitoring traffic." The officer stopped a vehicle with two Black men - "two B/M's," as the officer wrote - based on the tinting of the automobile windows. Even if the stop and subsequent search did not run afoul of the Fourth Amendment, Moncrieffe appears to have been the victim of racial profiling. A police officer, aided by a drug sniffing dog, in drug interdiction efforts relied on a minor vehicle infraction as the pretext to stop two Black men traveling on the interstate in a sports utility vehicle with tinted windows.

The Moncrieffe case exemplifies how a racially disparate criminal justice system exacerbates racially disparate removals in a time of record-setting deportations of noncitizens. Although he was fortunate enough to stave off deportation and separation from an entire life built in the United States, many lawful permanent residents are not nearly so lucky.

"Social Innovation" 
Washington University Law Review, Vol. 92, No. 1, 2014
UC Davis Legal Studies Research Paper No. 407

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical studies to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the patent context is individualistic, arises from a discrete origin and history, and prioritizes novelty. Much social innovation, however, arises from communities rather than individual inventors, evolves from multiple histories, and entails expanding that which already exists from one context to another. These attributes, moreover, apply in large part to technological innovation as well, thus revealing how patent law relies upon and reinforces a rather distorted view of the innovative processes it seeks to promote. Moving from the descriptive to the prescriptive, this Article cautions against extending exclusive rights to social innovations and suggests several nonpatent mechanisms for accelerating this valuable activity. Finally, it examines the theoretical implications of social innovation for patent law, thus helping to contribute to a more holistic framework for innovation law and policy.

"Brief of Interested Law Professors as Amici Curiae Supporting Respondent in Direct Marketing Association v. Brohl" 
Stanford Public Law Working Paper No. 2516159
San Diego Legal Studies Paper No. 14-71
UC Davis Legal Studies Research Paper No. 400
UC Berkeley Public Law Research Paper No. 2516159
UCLA School of Law Research Paper No. 14-19

DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu
ALAN B. MORRISON, George Washington University - Law School
Email: abmorrison@law.gwu.edu
JOSEPH BANKMAN, Stanford Law School
Email: JBANKMAN@LELAND.STANFORD.EDU
JORDAN M. BARRY, University of San Diego School of Law
Email: jbarry@sandiego.edu
BARBARA H. FRIED, Stanford Law School
Email: bfried@stanford.edu
DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
ANDREW J. HAILE, Elon University School of Law
Email: ahaile@brookspierce.com
KIRK J. STARK, University of California, Los Angeles (UCLA) - School of Law
Email: STARK@LAW.UCLA.EDU
JOHN A. SWAIN, University of Arizona - James E. Rogers College of Law
Email: john.swain@law.arizona.edu
DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

The petitioner in this case has framed the question presented as follows: "Whether the Tax Injunction Act bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration."

Amici agree with the respondent, the State of Colorado, that the Tax Injunction Act bars federal courts from enjoining the operation of the Colorado Statute at issue in this case because this lawsuit is intended to create the very kind of premature federal court interference with the operation of the Colorado use tax collection system that the TIA was designed to prevent. To assist the Court in understanding the application of the TIA to this case, amici (i) place the reporting requirements mandated by the Colorado Statute in the broader context of tax administration and (ii) explain the potential interaction between a decision on the TIA issue in this case and the underlying dispute concerning the dormant Commerce Clause.

Third-party reporting of tax information is a ubiquitous and longstanding feature of modern tax systems. When tax authorities rely on taxpayers to self-report their taxable activities, compliance rates for the collection of any tax is low. Like all states with a sales tax, Colorado faced - and faces - a voluntary compliance problem with the collection of its use tax. The use tax is a complement to the sales tax; in-state vendors collect and remit the sales tax, while in-state consumers are responsible for remitting the use tax on purchases made from out-of-state vendors that do not collect the sales tax. To this compliance challenge, Colorado turned to a third-party reporting solution. In broad strokes, the Colorado Statute imposes a modest requirement on one party to a taxable transaction - specifically on relatively large retailers who do not collect the use tax - to report information on their Colorado sales both to the consumer/taxpayer and to the taxing authorities.

Amici law professors contend that the centrality of third-party reporting to tax administration in general, and its aptness for this problem in particular, indicate that enjoining the operation of the Colorado Statute constitutes "restrain[ing] the assessment, levy or collection" of Colorado's use tax.

Amici also observe, however, that even a narrow ruling on the scope of the TIA in the Supreme Court could have an unexpected - and we would argue undesirable - impact on the federalism concerns that we think should decide this case. This is because any interpretation of the Colorado Statute for purposes of the TIA made by the Court might be erroneously construed as carrying over to interpreting the Statute for purposes of the dormant Commerce Clause.

We think it likely and reasonable for the courts below to look to the Supreme Court's decision on the TIA for guidance as to what test to apply under the dormant Commerce Clause. However, amici fear that a decision that held that Colorado's reporting requirement is integral to Colorado's "tax collection" for purposes of the TIA will exert a gravitational pull on the lower courts, encouraging them to apply the physical presence test from Quill Corp. v. North Dakota, 504 U.S. 298 (1992) to the Colorado Statute. The Quill test is an especially strict test under the dormant Commerce Clause, and one arguably meant only for "taxes." Thus, a victory for sensible state tax administration and federalism in this Court could be transmuted into a defeat for those principles below. Amici believe that NFIB v. Sebelius, 132 S. Ct. 2566 (2012), teaches that an answer on the TIA does not compel an answer concerning the dormant Commerce Clause. We call this issue to the Court's attention so that the Court is aware of how a decision on the TIA issue might be used - or misused - when the case reaches the merits, either in the state or federal court system.

"Non-Citizen Nationals: Neither Aliens Nor Citizens" 
UC Davis Legal Studies Research Paper No. 405

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

The modern conception of the law of birthright citizenship operates along the citizen/noncitizen binary. Those born in the United States generally acquire automatic U.S. citizenship at birth. Those who do not are regarded as non-citizens. Unbeknownst to many, there is another form of birthright membership category: the non-citizen national. Judicially constructed in the 1900s and codified by Congress in 1940, non-citizen national was the status given to people who were born in U.S. territories acquired at the end of the Spanish-American War in 1898. Today, it is the status of people who are born in American Samoa, a current U.S. territory.

This Article explores the legal construction of non-citizen national status and its implications for our understanding of citizenship. On a narrow level, the Article recovers a forgotten part of U.S. racial history, revealing an interstitial form of birthright citizenship that emerged out of imperialism and racial restrictions to citizenship. On a broader scale, this Article calls into question the plenary authority of Congress over the territories and power to determine their people's membership status. Specifically, this Article contends that such plenary power over the citizenship status of those born in a U.S. possession conflicts with the common law principle of jus soli and the Fourteenth Amendment's Citizenship Clause. Accordingly, this Article offers a limiting principle to congressional power over birthright citizenship.

A paper by Professor Andrea Chandrasekher has been selected for presentation at the prestigious Harvard/Stanford/Yale Junior Faculty Forum, held tomorrow and Saturday, at Stanford University.

Professor Chandrasekher will present "Police Unrest and Lengthy Contract Negotiations: Does Police Misconduct Increase with Time Spent Out of Contract?" as part of the conference session on Labor Law and Social Welfare Policy. Her article presents evidence that incidents of police misconduct increase when police departments are forced to work under expired contracts as new collective bargaining agreements are being negotiated.

Professor Chandrasekher's educational background includes a JD from Stanford Law School and a PhD in Economics from UC Berkeley. She has taught as a visiting assistant professor at Northwestern School of Law and served as a fellow at Stanford Law School. Her research interests include criminal law, law and economics, quantitative methods, criminal justice public policy analysis, and policing. She joined the King Hall Community in 2013.

Cross-posted from The Life of the Law.

Remember pagers? As outdated as they seem now, these were once seen as the technological tool of choice for drug dealers (to say nothing of doctors). The police also used to rely on “bumper-beepers” to track suspects in criminal investigations. There has always been an arms race of technology in crime and policing.

Today, most people have some passing familiarity with the rapidly changing world of surveillance: the revelations about the NSA’s bulk phone metadata collection, the emergence of unmanned drones, and the growing sophistication of biometric technology.

The problem is that most people aren’t well-versed in the Fourth Amendment’s third party doctrine, or the “business records” provision of the Patriot Act. The complexity of the law in these areas–and the fact that the concepts aren’t that intuitive–makes public debate about the appropriate scope of government surveillance difficult.

That’s where the artists come in.

There are a small but growing number of visual artists and designers who have raised questions about the tools of government surveillance in direct, provocative, and accessible ways.

Case #1: Brooklyn-based designer Adam Harvey has created a series of wearable objects that draw attention to the tools of mass surveillance. His Stealth Wear line of “anti-drone” clothing is made of a special fabric intended to thwart thermal imaging devices that could be mounted on unmanned police surveillance drones. (The FAA is in the midst of crafting regulations for a future in which unmanned drones will occupy our public airspace.) The state of the law on drones is changing. Although the Supreme Court’s Fourth Amendment cases probably don’t require the police to obtain a warrant for their use, many state legislatures are considering statutory limits. What Harvey’s work highlights in a direct and arresting way, however, is that the prospect of sophisticated eyes in the skies might force us to change our public habits, even our clothing, if we wish to retain some anonymity or privacy.

Case #2: The police and Facebook alike are becoming interested in the capabilities of facial recognition technology. This biometric computer software can scan a picture of a face and compare it to a database of stored information. The computer algorithms in the software typically focus on the areas around the eyes, nose, and mouth. Artist Zach Blas’s Face Cages takes this idea and makes it literal: a painful metal mask that represents the areas targeted by facial recognition technology. Scanning faces in a crowd, like the use of unmanned drones in public spaces, is a murky legal area. The Supreme Court’s Fourth Amendment cases probably don’t provide individual protections against these biometric technologies. But Blas’s work suggests how such technologies may be “trapping” us in ways that nevertheless threaten widely held beliefs about privacy.

Case #3: New York based artist Heather Dewey-Hagborg’s Stranger Visions project takes on another cutting edge technology: the growing capacity of government to collect and analyze our genetic information. The art involves extracting DNA from discarded items Dewey-Hagborg finds in public spaces, such as cigarette butts and chewing gum. She then has the DNA extracted from these discarded items analyzed for specific genomic sequences associated with physical traits like hair and eye color, and creates life-size three dimensional masks of the persons she has “identified” from their garbage. Dewey-Hagborg’s faces are a best guess about the source of the DNA (although a recent scientific paper suggests that predictive modeling based on unidentified DNA samples could one day soon be a reality). The point isn’t accuracy, though. The Stranger Visions project asks us to confront directly how we feel about the fact that we are leaving genetic information behind everywhere we go. Should that information be considered as devoid of privacy expectations as the literal trash we throw away? Do we feel comfortable that third parties—both governmental and commercial—might be able to identify who we are from our genetic traces? The law here, too, is unclear at best.

Enormous technological changes are making it possible for us to be identified, watched, and listened to in ways that were once unimaginable. What we should do about these changes is difficult because the surveillance is sometimes surreptitious, often complicated to understand, and undetermined with regard to is regulation.

Art has the power to question, provoke, and reveal new truths to us. These artists are opening up the conversation about the place of surveillance and the law in our lives to anyone willing to watch and to listen.

Feature photo: Anti-drone burqa, Adam Harvey

Almost everyone, especially apartment house dwellers, in and around  New York City knows that mentioning “The Super” refers to a very important individual. He is an employee of the apartment house owner, lives on the premises, and is in charge of all custodial services and other matters. This includes janitorial service,  plumbing repair in individual apartments, collecting rents each month, making sure  each apartment has heat during the winter, and, perhaps most important of all, taking out the garbage. If the apartment house is large enough to have many tenants, there can be staff members to handle the work under the direction of the Super. It is very obvious to most apartment house dwellers that keeping on the good side of the Super and giving him a cash gift at Christmas time assures prompt service whenever any matter requires expert attention.

Our family got along very well with our Super. In fact, we were on a first name  basis with him. We called him Doug, and he referred to my father as Sam.

One day, two FBI agents came by to question Doug about my father.  Supers knew much about their tenants and also networked with other Supers in the neighborhood so that information about tenants in other buildings was shared many times. The agents said that my father was suspected of smuggling diamonds into the country, especially through Asia.

During the session of intensive interrogation by the FBI, Doug interrupted the agents, exclaiming, “I just can’t believe this about Sam. He’s a good man who respects the law.”  One of the agents then opened a folder and showed a photograph to Doug, saying, “Well, here is what he looks like.”

Doug looked at the photographed and immediately replied, “That’s not Sam. It’s Ivan Zimmer. He lives two houses down the block. Nobody likes him, and you can check up on him with Dino Belucci, the Super in that building.”

Ivan had obviously stolen my father’s identity for his passport. The agents went on their way, possibly to talk with Dino about Ivan and his activities.  A short time later, no one saw Ivan in the neighborhood any longer.

The Super, being friendly and supportive with us, told my father all about this episode. When my father shared the information with us, we were somewhat confused because he had never left the United States for any reason after emigrating here from Germany some 35 years earlier and never acted suspiciously or secretly. We were also frightened because we had no experience with the FBI or any knowledge about their procedures.

Our “brush with the law” took place around 1938. My father died in 1963. Here is it is the year 2010. I suspect that somewhere in the archives of the FBI is a folder containing some yellowing pages referring to my innocent father as a suspected diamond smuggler.  So it goes sometimes with crime and corruption in America!

Mortimer D. Schwartz is Professor Emeritus at the UC Davis School of Law.

DNA rendering by ynse

Even if DNA evidence proves crucial to cracking to case of a serial killer, the use of such evidence is outpacing laws regulating it.

DNA evidence was undeniably the key to the arrest and charging of Lonnie David Franklin Jr., believed to be the Grim Sleeper responsible for a string of slayings in Los Angeles between 1985 and 2007. Many will cite this use of DNA evidence in a high-profile serial murder case as one more reason to increase reliance on this important investigative tool. But in fact it's precisely at a moment like this when an investigative triumph can blind us to the dangers of expanding genetic surveillance.

There were actually three different uses of DNA evidence in the Grim Sleeper investigation that we should be concerned about. They all turn basic assumptions about our criminal justice system on their heads. The first is the use of familial DNA searches. Most of the time, investigators search state DNA databases to find a complete match linking a particular person's DNA profile to crime scene evidence. Familial matches are different. A "hit" in the database establishes definitively that the person in the database is not the wanted suspect, but suggests that it is one of his or her relatives.

Why is this problematic? Keep in mind that in usual police "searches," there must be individualized probable cause for suspicion, as required by the 4th Amendment. With familial searches, the only reason the police identify their suspect is because he is genetically related to someone in a DNA database. If that sounds like guilt by association, it is. Why should the mere inclusion of one of your family members in a DNA database mean that you might be a target of an investigation one day?

The second investigative technique used in the Grim Sleeper investigation was the use of "abandoned" or "discarded" DNA. We all leave DNA on used coffee cups, smoked cigarettes and many other items on a daily basis. After the police turned their focus to Franklin, undercover police followed him until he left some of his DNA on a piece of pizza as well as silverware and a glass after a meal out.

Few rules govern the circumstances in which police can collect this involuntarily shed DNA. Police typically defend the practice by saying it produces results. Of course, when successful matches are found, the unrestrained collection of abandoned DNA sounds defensible. But what about all of the hunches that police might like to pursue in this way? Have we all silently consented to giving up our discarded DNA to the police?

The third use of DNA in the investigation is unlikely to receive much fanfare; it wasn't successful. Yet it is equally dangerous to civil liberties. Two years ago, LAPD vice officers arrested a number of suspected johns not as part of a crackdown on prostitution but rather for the purpose of collecting their DNA. (Many of the Grim Sleeper's victims were prostitutes.) Such a technique is known as a DNA dragnet. As of January 2009, Proposition 69 allows the state to collect DNA not just from those convicted of felonies but also from all people who have simply been arrested on suspicion of committing felonies. Atty. Gen. Jerry Brown's formal approval of familial searches is still limited to searching profiles of convicted felons in special cases, but it's not hard to imagine an expansion to all cases regardless of severity, and to arrestee profiles as well.

There's no doubt that DNA evidence gives the police an important tool. Without it, the Grim Sleeper case would probably be yet another unsolved case. The trouble is that we are rushing forward with these uses of DNA evidence with little consideration of the ever-increasing scope of genetic surveillance over our citizens. Many states that have not formalized their policies in these areas have taken note of what the police did in this case. What matters isn't just that this particular fish was caught; it's the ever-widening net over us.

Elizabeth Joh, a professor at the UC Davis School of Law, has written widely about DNA evidence, undercover policing and police privatization.

Cross-posted from the Los Angeles Times.