Dramatic advances in weapons technology over the past two decades have led to a revolution in military affairs. Robotics and cyber weapons have used real-time information and communications to produce precision that has reduced casualties and blurred the line between war and peace. Critics fear that these developments will encourage nations to resort to force more often; they call for international agreements to ban the new technologies. This Essay argues that efforts to limit the use of such weapons are both misguided and counterproductive. New military technologies will advance humanitarian aims by reducing civilian casualties and the overall destructiveness of war. A rationalist approach to war even suggests that these weapons will create more opportunities for the settlement of international disputes with less use of force.
{"title":"Embracing the Machines: Rationalist War and New Weapons Technologies","authors":"J. Yoo","doi":"10.15779/Z38D50FX0X","DOIUrl":"https://doi.org/10.15779/Z38D50FX0X","url":null,"abstract":"Dramatic advances in weapons technology over the past two decades have led to a revolution in military affairs. Robotics and cyber weapons have used real-time information and communications to produce precision that has reduced casualties and blurred the line between war and peace. Critics fear that these developments will encourage nations to resort to force more often; they call for international agreements to ban the new technologies. This Essay argues that efforts to limit the use of such weapons are both misguided and counterproductive. New military technologies will advance humanitarian aims by reducing civilian casualties and the overall destructiveness of war. A rationalist approach to war even suggests that these weapons will create more opportunities for the settlement of international disputes with less use of force.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"443"},"PeriodicalIF":2.4,"publicationDate":"2017-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49266323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This festschrift essay celebrates Professor Eleanor Swift’s singular role and legacy in building Berkeley Law’s vibrant public interest program. Thousands of students have passed through one or more of the experiential education courses and social justice programs that Professor Swift helped to create, build and sustain. In these settings, students have learned to be better lawyers and better people. They have provided legal services to underserved individuals, groups and causes. And they have given content to the law school’s public mission to solve real-world problems and create a more just society.
{"title":"Eleanor Swift's Indelible Public Interest Legacy at Berkeley Law","authors":"Jeffrey Selbin","doi":"10.15779/Z38X63B47W","DOIUrl":"https://doi.org/10.15779/Z38X63B47W","url":null,"abstract":"This festschrift essay celebrates Professor Eleanor Swift’s singular role and legacy in building Berkeley Law’s vibrant public interest program. \u0000Thousands of students have passed through one or more of the experiential education courses and social justice programs that Professor Swift helped to create, build and sustain. In these settings, students have learned to be better lawyers and better people. They have provided legal services to underserved individuals, groups and causes. And they have given content to the law school’s public mission to solve real-world problems and create a more just society.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"583-590"},"PeriodicalIF":2.4,"publicationDate":"2017-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47547187","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"It Wasn’t Me—Unintended Targets of Arrest Warrants","authors":"Brandon V. Stracener","doi":"10.15779/Z383855","DOIUrl":"https://doi.org/10.15779/Z383855","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"229"},"PeriodicalIF":2.4,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44725765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Federal and state law prohibit government officials from accepting gifts or “emoluments” from outside sources. The purpose of gift bans, like restrictions on more explicit forms of bribery, is to protect the integrity of political processes and to ensure that decisions about public policy are made in the public interest — not to advance a private agenda. Similar considerations animate regulations on campaign funding and lobbying. Yet private entities remain free to offer gifts to government itself, to foot the bill for particular public projects they would like to see government pursue. Such gifts — dubbed “patriotic philanthropy” by one prominent donor — raise fundamental questions about the private role in public policymaking, questions that are central to debates over campaign finance, private philanthropy, and the privatization of government functions. Nevertheless, they have received virtually no attention in the legal literature. This Article offers a positive and normative account of gifts to government. Although we do not question the enormous good that patriotic philanthropy can do, we argue that gifts raise significant concerns about democratic process, equality, and state capacity.
{"title":"Patriotic Philanthropy? Financing the State with Gifts to Government","authors":"M. Lemos, G. Charles","doi":"10.15779/Z38N87303D","DOIUrl":"https://doi.org/10.15779/Z38N87303D","url":null,"abstract":"Federal and state law prohibit government officials from accepting gifts or “emoluments” from outside sources. The purpose of gift bans, like restrictions on more explicit forms of bribery, is to protect the integrity of political processes and to ensure that decisions about public policy are made in the public interest — not to advance a private agenda. Similar considerations animate regulations on campaign funding and lobbying. Yet private entities remain free to offer gifts to government itself, to foot the bill for particular public projects they would like to see government pursue. Such gifts — dubbed “patriotic philanthropy” by one prominent donor — raise fundamental questions about the private role in public policymaking, questions that are central to debates over campaign finance, private philanthropy, and the privatization of government functions. Nevertheless, they have received virtually no attention in the legal literature. This Article offers a positive and normative account of gifts to government. Although we do not question the enormous good that patriotic philanthropy can do, we argue that gifts raise significant concerns about democratic process, equality, and state capacity.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"1129"},"PeriodicalIF":2.4,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42007431","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In a well-known tort decision, Judge Learned Hand observes that while legal standards almost always coincide with customary industry standards, strictly speaking custom never controls. This Essay examines the implications of this apparent paradox, concluding that courts must have final say in order to prevent doctrinal feedback loops—situations in which legal doctrine influences customary behavior which, in turn, influences doctrine, which in turn influences custom, and so on. Were feedback loops allowed to develop unchecked by judicial review and intervention, they would lead to unfair and inefficient overinvestments or underinvestments in care. The Essay describes the approach courts should adopt in determining whether, in given instances, these feedback loops present a problem.
{"title":"Learned Hand’s Paradox: An Essay on Custom in Negligence Law","authors":"J. Henderson","doi":"10.15779/Z38585V","DOIUrl":"https://doi.org/10.15779/Z38585V","url":null,"abstract":"In a well-known tort decision, Judge Learned Hand observes that while legal standards almost always coincide with customary industry standards, strictly speaking custom never controls. This Essay examines the implications of this apparent paradox, concluding that courts must have final say in order to prevent doctrinal feedback loops—situations in which legal doctrine influences customary behavior which, in turn, influences doctrine, which in turn influences custom, and so on. Were feedback loops allowed to develop unchecked by judicial review and intervention, they would lead to unfair and inefficient overinvestments or underinvestments in care. The Essay describes the approach courts should adopt in determining whether, in given instances, these feedback loops present a problem.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"165"},"PeriodicalIF":2.4,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44494469","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Bail bond companies act as gatekeepers to freedom for thousands in California every day. Yet despite their ubiquitous role in our criminal justice system, the current framework regulating the commercial bail industry almost exclusively monitors the relationship between bail companies and the state, but fails to mitigate the wide-ranging variety of harms that bail agents can and often do inflict on their customers. In large part, this is because existing policies frame defendants simply as criminals, erasing their simultaneous position as consumers soliciting a commercial service. As a consequence, consumers who make use of the commercial bail bond system, largely poor individuals of color and their families, remain vulnerable to a system ripe for abuse. This paper presents a novel way to frame the interaction between a bail bond company and its customer as a fundamentally consumer interaction that should, as countless similar goods and services are, be governed by a consumer protection framework. This regime would adequately protect individuals who utilize bail bond companies from abuse and generally encourage a well functioning commercial bail industry. This paper provides an avenue for pursuing claims against abusive bail bond companies and suggests policy changes to create a better commercial bail industry. In doing so, this paper argues (1) that commercial bail companies offer a service that can and should be regulated by currently existing consumer protection law; (2) that although no such cases have yet been brought in California, consumers of these bail services can and should bring suit against bail companies for violations of state and federal consumer protection laws; and (3) that despite the availability of such claims, new legislation specifically tailored to the industry is urgently needed to ensure a properly functioning industry free of exploitation and abuse. Part I of this paper summarizes the process of pretrial detention and bail in California. Part II describes the commercial bail system in California, illuminating the context in which consumers of bail services find themselves. Part II then summarizes qualitative research conducted with 35 individuals in order to describe the variety of harms consumers of bail services often endure. Part III surveys existing consumer protection legislation for consumers seeking relief, focusing primarily on the federal and California fair debt collection practices acts (FDCPA, and CFDCPA), the California Legal Remedies Act (CLRA), and the California Unfair Competition Law (UCL). In Part IV, the paper addresses the broader regulation of the commercial bail industry, focusing on the areas that existing protections may not be able to reach and describing the possibility of enacting new legislation specifically tailored to these deficiencies.
{"title":"Consumer Protection for Criminal Defendants: Regulating Commercial Bail in California","authors":"Mel Gonzales","doi":"10.2139/SSRN.2927128","DOIUrl":"https://doi.org/10.2139/SSRN.2927128","url":null,"abstract":"Bail bond companies act as gatekeepers to freedom for thousands in California every day. Yet despite their ubiquitous role in our criminal justice system, the current framework regulating the commercial bail industry almost exclusively monitors the relationship between bail companies and the state, but fails to mitigate the wide-ranging variety of harms that bail agents can and often do inflict on their customers. In large part, this is because existing policies frame defendants simply as criminals, erasing their simultaneous position as consumers soliciting a commercial service. As a consequence, consumers who make use of the commercial bail bond system, largely poor individuals of color and their families, remain vulnerable to a system ripe for abuse. This paper presents a novel way to frame the interaction between a bail bond company and its customer as a fundamentally consumer interaction that should, as countless similar goods and services are, be governed by a consumer protection framework. This regime would adequately protect individuals who utilize bail bond companies from abuse and generally encourage a well functioning commercial bail industry. This paper provides an avenue for pursuing claims against abusive bail bond companies and suggests policy changes to create a better commercial bail industry. In doing so, this paper argues (1) that commercial bail companies offer a service that can and should be regulated by currently existing consumer protection law; (2) that although no such cases have yet been brought in California, consumers of these bail services can and should bring suit against bail companies for violations of state and federal consumer protection laws; and (3) that despite the availability of such claims, new legislation specifically tailored to the industry is urgently needed to ensure a properly functioning industry free of exploitation and abuse. \u0000Part I of this paper summarizes the process of pretrial detention and bail in California. Part II describes the commercial bail system in California, illuminating the context in which consumers of bail services find themselves. Part II then summarizes qualitative research conducted with 35 individuals in order to describe the variety of harms consumers of bail services often endure. Part III surveys existing consumer protection legislation for consumers seeking relief, focusing primarily on the federal and California fair debt collection practices acts (FDCPA, and CFDCPA), the California Legal Remedies Act (CLRA), and the California Unfair Competition Law (UCL). In Part IV, the paper addresses the broader regulation of the commercial bail industry, focusing on the areas that existing protections may not be able to reach and describing the possibility of enacting new legislation specifically tailored to these deficiencies.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"1379"},"PeriodicalIF":2.4,"publicationDate":"2017-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2927128","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42833821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Bernard H. Chao, Catherine S. Durso, Ian P. Farrell, C. Robertson
The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system and exacerbate social unrest. Although prior research has shown that the police disproportionately target younger people and minority communities, judges tend to be male, white, educated, affluent, and older than the general population. Their intuitions may thus be systematically different. Even worse, cognitive science suggests that judges may have difficulty putting themselves into the shoes of the searched person or considering the reasonableness of the police tactics from an ex ante perspective, without knowledge about the fruits of the search. With 1200 respondents, we conducted a large-scale survey experiment to test whether, and if so, why, contemporary Fourth Amendment jurisprudence diverges from the societal norms it purports to protect and reflect. We identify a range of privacy expectations for 18 different police practices. We use oversampling, reweighting, and randomization to investigate particular causes of this disparity between judicial and public expectations. We conclude by suggesting better ways forward, so that social science evidence can replace judicial speculation.
{"title":"Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology","authors":"Bernard H. Chao, Catherine S. Durso, Ian P. Farrell, C. Robertson","doi":"10.15779/Z38GF0MW50","DOIUrl":"https://doi.org/10.15779/Z38GF0MW50","url":null,"abstract":"The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system and exacerbate social unrest.\u0000 \u0000 Although prior research has shown that the police disproportionately target younger people and minority communities, judges tend to be male, white, educated, affluent, and older than the general population. Their intuitions may thus be systematically different. Even worse, cognitive science suggests that judges may have difficulty putting themselves into the shoes of the searched person or considering the reasonableness of the police tactics from an ex ante perspective, without knowledge about the fruits of the search.\u0000 \u0000 With 1200 respondents, we conducted a large-scale survey experiment to test whether, and if so, why, contemporary Fourth Amendment jurisprudence diverges from the societal norms it purports to protect and reflect. We identify a range of privacy expectations for 18 different police practices. We use oversampling, reweighting, and randomization to investigate particular causes of this disparity between judicial and public expectations. We conclude by suggesting better ways forward, so that social science evidence can replace judicial speculation.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"263"},"PeriodicalIF":2.4,"publicationDate":"2017-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44464688","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
California’s Sustainable Groundwater Management Act (“SGMA”) allows local entities that represent landowners, government agencies, or private companies rather than the public to take on exclusive power to regulate and manage imperiled groundwater resources. In at least some cases, the ways in which these entities are governed and controlled violates the one-person, one-vote requirement of the Equal Protection Clause, and even the requirement that local government representational structures have a rational basis. SGMA attempts to address a longstanding gap in California water regulation, the consequences of which have culminated in a statewide crisis. Despite its importance to the future of the state’s economy and environment, the law’s implications for democracy have largely been ignored. This note examines the ways in which SMGA invokes Fourteenth Amendment, and specifically, requirements for proportional representation in local government established by Avery v. Midland County and Board of Estimate v. Morris. It argues that voter accountability and proportional representation in groundwater governance are important to actually achieving the ultimate goal of the legislation: effective management and regulation of critically imperiled common pool resources in California. It also contributes to solving a bigger problem. Special districts comprise the most numerous sector of American government, with policy-making and administrative responsibility for vital environmental resources, infrastructure, and services. Better enforcement of the one-person, one-vote requirement in this sector will promote accountability and equity in local government throughout the United States.
加利福尼亚州的《可持续地下水管理法》（“SGMA”）允许代表土地所有者、政府机构或私营公司而非公众的地方实体拥有监管和管理濒危地下水资源的专属权力。至少在某些情况下，这些实体的治理和控制方式违反了《平等保护条款》的一人一票要求，甚至违反了地方政府代表结构有合理基础的要求。SGMA试图解决加州水监管中长期存在的缺口，其后果已导致全州范围的危机。尽管该法律对该州经济和环境的未来很重要，但它对民主的影响在很大程度上被忽视了。本说明审查了SMGA援引第十四修正案的方式，特别是Avery诉Midland County和Board of Estimate诉Morris确立的地方政府比例代表制要求。它认为，选民问责制和地下水治理中的比例代表制对于实际实现立法的最终目标很重要：有效管理和监管加州严重濒危的公共水池资源。它也有助于解决更大的问题。特区是美国政府中数量最多的部门，对重要的环境资源、基础设施和服务负有决策和行政责任。在该行业更好地执行一人一票的要求，将促进美国各地地方政府的问责制和公平性。
{"title":"Aquifers and Democracy: Enforcing Voter Equal Protection to Save California’s Imperiled Groundwater and Redeem Local Government","authors":"L. Dyble","doi":"10.15779/Z386M33383","DOIUrl":"https://doi.org/10.15779/Z386M33383","url":null,"abstract":"California’s Sustainable Groundwater Management Act (“SGMA”) allows local entities that represent landowners, government agencies, or private companies rather than the public to take on exclusive power to regulate and manage imperiled groundwater resources. In at least some cases, the ways in which these entities are governed and controlled violates the one-person, one-vote requirement of the Equal Protection Clause, and even the requirement that local government representational structures have a rational basis. SGMA attempts to address a longstanding gap in California water regulation, the consequences of which have culminated in a statewide crisis. Despite its importance to the future of the state’s economy and environment, the law’s implications for democracy have largely been ignored. This note examines the ways in which SMGA invokes Fourteenth Amendment, and specifically, requirements for proportional representation in local government established by Avery v. Midland County and Board of Estimate v. Morris. It argues that voter accountability and proportional representation in groundwater governance are important to actually achieving the ultimate goal of the legislation: effective management and regulation of critically imperiled common pool resources in California. It also contributes to solving a bigger problem. Special districts comprise the most numerous sector of American government, with policy-making and administrative responsibility for vital environmental resources, infrastructure, and services. Better enforcement of the one-person, one-vote requirement in this sector will promote accountability and equity in local government throughout the United States.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"1471"},"PeriodicalIF":2.4,"publicationDate":"2017-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47381260","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.” To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. The Court assumed that there is no constitutional difference between media corporations and other corporations and that if the government were able to limit the speech of some corporations, then it would also be free to censor the speech of media corporations. This was a thought that the majority called “dangerous, and unacceptable” and that Justice Antonin Scalia said “boggles the mind.” To the Citizens United majority, the news media corporation example settled the question on corporate speech rights, because any other rule would be unconstitutional speaker-based discrimination and open the doors for regulation of the news media. But was the Citizens United Court correct about the media corporation dilemma? Is the government no more able to regulate the expressive activities of Exxon Mobil Corp. than it is of the New York Times Company? Must all speakers be treated uniformly whether or not they are members of the press? And does the Press Clause (and not just the Speech Clause) play a role in this analysis? In this article, I push back on the claim that the First Amendment prohibits speaker-based classifications by the government. Rather than ban such distinctions, the Press Clause traditionally has worked in support of differential treatment for the press. History, court precedent and legislative practice, moreover, demonstrate how favoritism for press speakers has been condoned and often encouraged. This debate over the meaning of the Press Clause could have significant ramifications. A jurisprudential drift of press rights away from a protection of core press functions and toward a constraint on the ability of the government to recognize the differing roles of press speakers could significantly threaten the vital structural safeguards of the Fourth Estate.
{"title":"Favoring the Press","authors":"Sonja R. West","doi":"10.15779/Z386D5PB11","DOIUrl":"https://doi.org/10.15779/Z386D5PB11","url":null,"abstract":"In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.” \u0000To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. The Court assumed that there is no constitutional difference between media corporations and other corporations and that if the government were able to limit the speech of some corporations, then it would also be free to censor the speech of media corporations. This was a thought that the majority called “dangerous, and unacceptable” and that Justice Antonin Scalia said “boggles the mind.” To the Citizens United majority, the news media corporation example settled the question on corporate speech rights, because any other rule would be unconstitutional speaker-based discrimination and open the doors for regulation of the news media. \u0000But was the Citizens United Court correct about the media corporation dilemma? Is the government no more able to regulate the expressive activities of Exxon Mobil Corp. than it is of the New York Times Company? Must all speakers be treated uniformly whether or not they are members of the press? And does the Press Clause (and not just the Speech Clause) play a role in this analysis? \u0000In this article, I push back on the claim that the First Amendment prohibits speaker-based classifications by the government. Rather than ban such distinctions, the Press Clause traditionally has worked in support of differential treatment for the press. History, court precedent and legislative practice, moreover, demonstrate how favoritism for press speakers has been condoned and often encouraged. \u0000This debate over the meaning of the Press Clause could have significant ramifications. A jurisprudential drift of press rights away from a protection of core press functions and toward a constraint on the ability of the government to recognize the differing roles of press speakers could significantly threaten the vital structural safeguards of the Fourth Estate.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"91"},"PeriodicalIF":2.4,"publicationDate":"2017-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45875843","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, arbitration, standing, personal jurisdiction, and international law. While I have much sympathy for many of these normative criticisms, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access, we could read these decisions instead as openings for state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow them. This Article documents state courts departing from Twombly and Iqbal on pleading, the Celotex trilogy on summary judgment, Wal-Mart v. Dukes on class actions, and Supreme Court decisions on standing and international law. Similarly, many of the highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions where class actions could not be certified, where individual claims would be sent to arbitration, where private plaintiffs would lack Article III standing, and where personal jurisdiction could not be secured. In sum, this Article evaluates state-court and state-enforcement responses to the Roberts Court’s procedural decisions, and suggests further interventions by state courts and public enforcers that could offset a regression in federal-court access. At the same time, this analysis also points up serious challenges for those efforts, and it offers reasons to be cautious about the politics of state procedure and enforcement.
{"title":"Procedural Retrenchment and the States","authors":"Z. Clopton","doi":"10.15779/Z38QV3C40V","DOIUrl":"https://doi.org/10.15779/Z38QV3C40V","url":null,"abstract":"Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, arbitration, standing, personal jurisdiction, and international law. While I have much sympathy for many of these normative criticisms, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access, we could read these decisions instead as openings for state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow them. This Article documents state courts departing from Twombly and Iqbal on pleading, the Celotex trilogy on summary judgment, Wal-Mart v. Dukes on class actions, and Supreme Court decisions on standing and international law. Similarly, many of the highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions where class actions could not be certified, where individual claims would be sent to arbitration, where private plaintiffs would lack Article III standing, and where personal jurisdiction could not be secured. In sum, this Article evaluates state-court and state-enforcement responses to the Roberts Court’s procedural decisions, and suggests further interventions by state courts and public enforcers that could offset a regression in federal-court access. At the same time, this analysis also points up serious challenges for those efforts, and it offers reasons to be cautious about the politics of state procedure and enforcement.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"411-480"},"PeriodicalIF":2.4,"publicationDate":"2017-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45322568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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