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The presumption of sanity is a concept in criminal law used to allocate burdens relating to the insanity defense. In Clark v. Arizona, the U.S. Supreme Court relied on the presumption to affirm the exclusion of evidence introduced to negate mens rea. This Comment discusses the problems with using the presump¬tion to exclude evidence from mens rea determinations and examines other ways to regulate...

Tribal sovereignty suffered greatly by the 1953 passage of Public Law 280, which gave certain states jurisdiction over the Indian country within their borders. However, recent cases show that tribes can preempt this state jurisdiction, and thereby reclaim some measure of sovereignty, if they prose¬cute crimes first—so long as the surrounding state has a statute abrogating the dual sovereignty...

Employers would just as soon not hire ex-offenders. They see the potential for workplace violence or theft, negligent hiring liability, and public relations nightmares. Because current law places the burden on employers to evaluate the risk that a particular ex-offender poses on the job, but gives them few tools with which to make that evaluation, employers would rather err on the side of caution...

Each year, the UCLA School of Law hosts the Melville B. Nimmer Memorial Lecture. Since 1986, the lecture series has served as a forum for leading scholars in the fields of copyright and First Amendment law. In recent years, the lecture has been presented by such distinguished scholars as Lawrence Lessig, Robert Post, Mark Rose, Kathleen Sullivan, David Nimmer, and Jonathan Varat. The UCLA Law...

Regulators responded to the analyst scandals of the late 1990s by imposing extensive new rules on the research industry. These rules include a requirement forcing financial firms to separate investment banking operations from research. Regulators argued, with questionable empirical support, that the reforms were necessary to eliminate analyst conflicts of interest and ensure the integrity of sell...

When the U.S. Supreme Court, in Lawrence v. Texas, struck down a law criminalizing homosexual sodomy, its decision was seen by the press and other political observers as a major contribution to American public life. The Court’s opinion also caught the attention of commentators on constitutional law, for it drew on the theme of equal citizenship to justify a decision resting on substantive due...

The U.S. Supreme Court’s indirect copyright liability standard, derived in Sony Corp. of America v. Universal City Studios, Inc. from patent law and reasserted in Metro-Goldwyn- Mayer Studios Inc. v. Grokster, Ltd., is widely seen as creating a safe harbor for distributors of dual-use technologies. Yet, when one looks to cases decided since Sony, subsequent legislative enactments, and post-Sony...

In recent years, article 10(a) of the Hague Service Convention, which allows for the sending of judicial and extrajudicial documents abroad by postal channels, has proven difficult to apply in the face of commercial and techno¬logical change. The difficulties stem from the fact that the Convention neglects to define the term “postal channels.” In 2006, the Permanent Bureau of the Hague Conference...

Only five years ago, same-sex marriage was not legal anywhere in the United States. That changed in November 2003, when the Supreme Judicial Court of Massachusetts held in Goodridge v. Department of Health that the state may not deny the protections, benefits, and obligations conferred by marriage to two individuals of the same sex who wish to marry. Advocates of same-sex marriage hoped that the...

In the workplace, institutional context clearly affects the shape of constitutional rights. That is underscored by the U.S. Supreme Court’s recent decision in Garcetti v. Ceballos. In denying First Amendment protections to public employees when they speak in the course of doing their jobs, Garcetti gets it wrong; but the right answer to the Garcetti problem is not so obvious. This Article...

First Amendment doctrine is caught between two competing impulses. On the one hand, courts and scholars face what one might call the lure of acontextuality. They seek a set of rules by which First Amendment law can be understood as a purely, formally legal phenomenon, untainted by the brute contingencies of the actual world. On the other hand, their efforts to construct acontextual legal doctrine...

Since September 11, 2001, the Bush Administration has engaged in a host of controversial counterterrorism actions that threaten civil liberties and even the physical safety of those targeted: enemy combatant designations, extreme interrogation techniques, extraordinary renditions, secret overseas prisons, and warrantless domestic surveillance. To justify otherwise unlawful policies, President...

This Article looks at the relationship between constitutional doctrine and institutional context by considering two recent cases in which law schools—perhaps the American institution most personally familiar to the current U.S. Supreme Court—appeared before the Court as litigants. In Grutter v. Bollinger, the Supreme Court upheld a law school’s use of race-conscious affirmative action in its...

First Amendment free speech doctrine has been called “institutionally oblivious” for ignoring how different institutions present different legal questions. This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law. With certain institutions, the situation is not institutional obliviousness but the opposite: extreme...