CategoryDiscourse

Discourse publishes shorter articles that are timely, interdisciplinary, and novel. Discourse strives to serve as a platform for scholars, ideas, and discussions that have often been overlooked in traditional law review settings. Because we seek to publish pieces that are accessible to legal and non-legal audiences alike, Discourse articles are generally between 3,000 and 10,000 words. Like our print journal, Discourse articles are published on Westlaw, Lexis, and in other legal databases, as well as our own website. Beginning with Volume 68, Discourse began publishing special issues of Law Meets World.

The Case Against Tamanaha’s Motel 6 Model of Legal Education

The radical overhaul of legal education espoused in Professor Brian Tamanaha’s new, widely read book Failing Law Schools would represent a disastrous step backward in legal education. Tamanaha and his supporters argue that the current crisis in legal education—rampant unemployment among debt-laden law graduates and plummeting law-school applications—requires a dramatic reduction in law-school...

Bons Mots, Buffoonery, and the Bench: The Role of Humor in Judicial Opinions

Despite the serious nature of court orders, judicial opinions can be humorous. While some decisions are funny simply because of their facts, judges have also employed puns, penned poems, cited songs, and formulated fables to convey legal conclusions creatively. Scholars and jurists debate the propriety of such humor. However, witticisms and quips continue to find their way into legal reporters...

Marriage This Term: On Liberty and the “New Equal Protection”

The story of equal protection’s demise is a familiar one. It has been decades since any new group has been afforded heightened scrutiny. Even for established protected groups, retrenchment in applicable standards has devitalized meaningful equal protection coverage. As a result, scholars such as Kenji Yoshino have contended that we are at “the end of equality doctrine as we have known it”—that we...

Defusing Implicit Bias

The February 2012 killing of Trayvon Martin has slowly reignited the national conversation about race and violence. Despite the sheer volume of debate arising from this tragedy, insuffi cient attention has been paid to the potentially deadly mix of guns and implicit bias. Evidence of implicit bias, and its power to alter real-world behavior, is stronger now than ever. A growing body of research...

Another Heller Conundrum: Is It a Fourth Amendment “Exigent Circumstance” to Keep a Legal Firearm in Your Home?

In Heller and McDonald, the Supreme Court recognized an individual’s constitutional right to possess a firearm in his home. This leads to an interesting question—doesn’t that right conflict with the common practice of police forcibly entering a home, without knocking and announcing their presence, when a reasonable suspicion exists that the occupant is armed? In other words, if one has a Second...

The New Ambiguity of “Open Government”

“Open government” used to carry a hard political edge: It referred to politically sensitive disclosures of government information. The phrase was first used in the 1950s in the debates leading up to passage of the Freedom of Information Act. But over the last few years, that traditional meaning has blurred, and has shifted toward open technology. Open technologies involve sharing data over the...

The Pseudo-Elimination of Best Mode: Worst Possible Choice?

Even as it is hailed as the most significant legislative change to patent law in a half-century, some of the changes the U.S. Congress made in the Leahy-Smith America Invents Act are surprisingly equivocal. One provision captures this aspect of the Act particularly well: the pseudo-elimination of the best mode requirement. In this Essay, we develop the concern that by equivocating on the best...

To Show Virtue Her Own Feature

Each year, the UCLA School of Law presents the Rutter Award for Excellence in Teaching to an outstanding law professor. On April 3, 2012, this honor was given to Professor Pavel Wonsowicz. UCLA Law Review Discourse is proud to continue its tradition of publishing a modified version of the ceremony speech delivered by the award recipient.

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Without much fanfare, at least two federal agencies—the Department of Transportation (DOT) and the Environmental Protection Agency (EPA)—have recently made changes to their cost–benefit analysis procedures.  The changes are technical and may not seem especially exciting, even to those predisposed to read regulatory impact analyses.  But they have the potential to affect substantive regulations...

Lies, Honor, and the Government’s Good Name: Seditious Libel and the Stolen Valor Act

Later this term the Supreme Court will decide the constitutionality of the Stolen Valor Act, which punishes anyone who falsely represents themselves to have been awarded certain military medals. Although the Court declared the crime of seditious libel inconsistent with the First Amendment long ago, the Act revives something very like that crime. The connection between the two crimes is not...

Tinkering With the Machinery of Life

Recent adjustments by the Environmental Protection Agency (EPA) and the Department of Transportation (DOT) to their cost–benefit analysis procedures could cause tremendous changes to federal regulation. For decades, federal agencies have calculated the value of a statistical life (VSL) and have used that number when evaluating the costs and benefits of proposed regulations. If a regulation was...

Putting Down: Expressive Subordination and Equal Protection

William M. Carter, Jr., divides race-conscious policies into those that concretely disadvantage minorities and those that do not subordinate them at all, but merely express the policymaker’s race-consciousness. The main aim of this Article is to introduce a third category that his dichotomy excludes: race-conscious policies that amount to expressive subordination. To subordinate people...

Professionalism and Matthew Shardlake

This Essay/Book Review examines the Matthew Shardlake series by C.J. Sansom. In particular, it examines the question of whether the sixteenth-century fictional lawyer Shardlake can serve as a role model for twenty-first-century lawyers, both in terms of his ethics and his professionalism. An examination of the Shardlake series as a whole yields some uncertain answers, both as to Shardlake and as...

Heaven: What Sense Can It Make to Say That Something Is Absolutely Wrong?

Democratic legal systems and international human rights norms hold generally that torture can never be justified, however urgent the need. Many, but not all, thinkers about morality agree with this consensus. But the certainty breaks down in the face of catastrophic, “ticking bomb” hypotheticals, and lawyers and moralists retreat to arguments about the unreality of such hypotheticals and about...