CategoryPrint

This Article seeks to transform how we think about affirmative action. The U.S. Supreme Court’s jurisprudence on the subject may appear to be a seamless whole, but closer examination reveals crucial differences between the cases broadly characterized as involving affirmative action. The government sometimes acts in a race-conscious manner by granting a tangible benefit to members of a minority...

Founders of a start-up usually take common stock as a large portion of their compensation for current and future labor efforts. By electing to pay a nominal amount of ordinary income tax on the speculative value of the stock when it is received, founders pay tax on any appreciation at the long-term capital gains rate. This Article argues that the preferential tax treatment of founders’ stock is...

For nearly three decades, the U.S. Supreme Court has struggled with the proper treatment of administrative action that departs from agency precedent. Moving toward a stronger theoretical account of administrative change requires exploring an underappreciated feature of all administrative action: the agency’s chosen mode of reasoning. Agencies sometimes execute their regulatory mandates by...

The U.S. Constitution provides a criminal defendant with a right to trial by jury, and most states and the federal government require criminal juries to agree unanimously before a defendant may be convicted. But what exactly must a jury agree upon unanimously? Well-established doctrine, pursuant to In re Winship, provides that the jury must agree that the prosecution has proven every element of...

Arbitration has changed dramatically since Congress enacted the Federal Arbitration Act in 1925. Increasingly, unsophisticated parties are asked to enter into binding arbitration agreements before any dispute has arisen. As a result, mandatory laws are frequently interpreted and enforced by arbitrators rather than judges. Nonetheless, judicial review of arbitration awards is still largely limited...

Each year, the UCLA Law Review hosts a Symposium featuring cutting-edge scholarship by leading specialists in an emerging legal field. On January 28, 2011, thirteen scholars engaged in a stimulating and productive conversation on contemporary interplay of criminal law and immigration law. Dean Moran opened the Symposium by welcoming the participants and highlighting the key issues and challenges...

The U.S. Supreme Court’s decision in Padilla v. Kentucky heralds a formal breakthrough in the representation provided to immigrants charged with crimes that trigger deportation, and the decision may signal as well the Court’s recognition of plea bargaining’s dominant role in criminal adjudication. There are good reasons to worry, however, that Padilla’s practical impact will be modest, and for...

In Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment required counsel to advise clients pleading guilty that conviction might result in deportation. The Court rested its decision on the idea that this information was important to the client’s decisionmaking process. However, the Court did not explore a stronger reason for developing a more precise understanding of a...

The U.S. Supreme Court’s pathbreaking decision in Padilla v. Kentucky seems reasonably simple and exact: Sixth Amendment norms were applied to noncitizen Jose Padilla’s claim that his criminal defense counsel was ineffective due to allegedly incorrect advice concerning the risk of deportation. This was a very significant move with virtues of both logic and justice. It will likely prevent many...

The traditional starting point for Sixth Amendment jurisprudence is the individual defense attorney, acting alone. Padilla v. Kentucky, however, replaced the image of the lawyer as a heroic and individualistic figure with an image of the lawyer as a team manager consulting with other professionals to provide integrated legal services. Public defender organizations already experiment with various...

For more than two decades, criminal procedure scholars have debated what role, if any, race should play in the context of policing. Although a significant part of this debate has focused on racial profiling, or the practice of employing race as basis for suspicion, criminal procedure scholars have paid little attention to the fact that the U.S. Supreme Court has sanctioned this practice in a...

Local opposition to day laborers is built upon a standard diagnosis of the day labor “problem” and a common approach to its “remedy.” The diagnosis views day labor as a public nuisance that imposes negative externalities on a locality by disrupting normal patterns of business, traffic, and pedestrian exchange. The remedy involves the enactment of new land use regulations, known as...

Crimmigration law wastes one of the law’s most valuable tools: time. It eschews the temporal gauges that criminal law and immigration law rely on to evaluate who should be included or expelled from society. Instead, crimmigration law narrows the decision whether to exclude or expel the noncitizen from the nation to a single moment in time: the moment of the crime that makes the noncitizen...

Arizona’s Senate Bill 1070 has focused attention on whether federal law preempts the prosecution of state immigration crime in local criminal courts. Absent from the current discussion, however, is an appreciation of how Arizona’s existing body of criminal immigration law—passed well before SB 1070 and currently in force in the state—functions on the ground to regulate migration. Drawing on...