University of California Hastings College of the Law
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Going Federal, Staying Stateside: Felons, Firearms, and the ‘Federalization’ of Crime
No full textScholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers. Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity. Yet, no one has obtained the state-court data needed to substantiate these comparisons. This Article fills that gap with an examination of the crime of being a felon in possession of a firearm, an offense that now accounts for nearly 10% of the federal criminal docket. The Article makes three main contributions to the literature. First, it shows how the literature’s claims about the superiority of federal prosecutions (compared to state ones) are rarely substantiated by data about actual state court prosecutions. In essence, the literature considers only the cases that went federal, not the far more numerous cases that could have gone federal yet stayed in state court. Second, using a novel case study of all the federal and state felon-in- possession prosecutions in one of the nation’s largest counties—Alameda County, California—the Article tests several bedrock claims about federalization. The testing leads to surprising results regarding conviction rates, sentencing severity, and racial disparities in charging practices. Finally, the Article connects these findings to the larger problem of academia’s fixation on all things federal—a fixation that comes at the expense of state and local topics
The Intrusive State: Restrictions on Gender-Affirming Healthcare for Minors, Exceptions to the Doctrine of Parental Consent, and Reliance on Science and Medical Expertise
No full textThe provision of gender-affirming medical care to transgender or gender diverse (“TGD”) youth is currently the subject of substantial controversy despite an overwhelming consensus in the healthcare community as to the safety and potential benefits of recommended treatments. Much of the debate is fueled by misinformation and inaccurate characterization of research and practice. Against this backdrop, twenty-three states enacted restrictions or complete prohibitions on access to gender-affirming medical care for adolescents between 2021 and the time of this writing in early 2024. The policies typically place healthcare practitioners who provide such services at risk of license revocation. Some statutes create rights of enforcement in third parties or the state, some establish criminal penalties, and others restrict financing of services. Minor patients and their parents have sued to prevent enforcement of these policies, alleging violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Many federal and state district courts have issued preliminary injunctions staying enforcement of some or all of the provisions of the reviewed statutes. Some of these injunctions have been reversed or modified on appeal, creating a split in the federal circuits. This Article reviews and examines the enacted state measures and the litigation challenging those policies. It focuses primarily on Due Process Clause challenges, analyzing the issues through the lens of the law governing healthcare decisionmaking for minors. Guided by federal constitutional law, state statutory and case law, scholarly commentary, and the new Restatement of Children and the Law, this Article reviews the doctrine of parental consent and its exceptions. It concludes that the recent state restrictions on access to gender- affirming care for TGD youth do not satisfy the legally recognized exceptions to that doctrine, and that therefore, the intrusions into family decisionmaking authorized by these statutes are unconstitutional under the Due Process Clause. Proponents of these measures reject the scientific basis for the standards of care and the consensus positions of the healthcare community. In their place, the measures’ proponents proffer misinformation and in some instances, disinformation (that is, content disseminated with the intent of creating controversy, confusion, and uncertainty). Of additional concern, some federal appellate courts have given weight to these unsubstantiated assertions and misrepresentations of the scientific literature in reversing lower court decisions that were well-grounded in the science. This phenomenon reflects a broader trend: Politically and ideologically motivated efforts have infused misinformation into public discussions and legal decisionmaking, affecting the outcomes of legal decisions. As the review of the scientific literature within this Article reveals, the measures—not the treatments they restrict—risk substantial harm to a highly vulnerable group of young persons and their families, isolating these individuals and families from much-needed professional sources of treatment and support. Although the denial of needed treatment is the most obvious harm, the infliction of pain on these children and their families through social stigmatization, rejection, and marginalization is among the many ripple effects of these legal measures
Criminalizing Race: How Direct And Indirect Criminalization Of Racial “Status” Constitutes Cruel And Unusual Punishment
No full textEighth Amendment Jurisprudence proscribes criminalization based on “status.” Based on United States Supreme Court case law, for the purposes of this paper, “status” is understood to mean an “ongoing state of being.” This paper argues that race is “status” and thus criminalizing people of color based on race violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. Further, in the United States, racial “status” is criminalized both directly and indirectly. Racial “status” is criminalized directly by police officers’ frequent use of racial profiling to build criminal cases against people of color. On the other hand, racial status is criminalized indirectly when police officers interpret conduct that is inextricably tied to racial “status” as inherently criminal. Finally, this paper argues that recriminalization of “felons” is an unconstitutional criminalization of “status,” disproportionately harming communities of color
After the Demise of Affirmative Action, Ensuring Equitable Access to Educational Opportunities
No full textOn June 29, 2023, the United States Supreme Court held in two related cases that race-based affirmative action in college admissions is unconstitutional, because it violates the Equal Protection Clause of the 14th Amendment. What is next in (higher) education after the Supreme Court’s rulings in two related cases brought by Students for Fair Admissions? The decisions may dramatically transform college admissions and even how universities think about allocating their resources and about their role in a democratic society. Even now, the Court’s holdings are rippling past highly selective college campuses to corporate boardrooms, non-profits, and state legislatures.
Despite the Court banning race-based affirmative action in college admissions, new empirical analysis of a novel big data set demonstrates that Asian American applicants to highly selective colleges are 28% less likely to be admitted than white students with similar standardized test scores, high school GPAs, and extracurricular activities. This Asian American admissions penalty is primarily due to legacy admissions and preferences for geographical balance. This Essay advocates that highly selective colleges end legacy admissions to diversify America’s economic, political, and social leadership. This Essay also advocates ending the recruiting of athletes in such elite sports as fencing, rowing, sailing, and water polo. This Essay suggests ending the practice of early decision. This Essay also endorses effectively cloning highly selective colleges. Finally, this Essay offers practical and pragmatic answers to questions about how to change education for the better
Long Range Campus Plan Update and 201 Golden Gate Avenue Mixed-Use Project Environmental Impact Report Public Draft
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Towards Responsible Quantum Technology: Safeguarding, Engaging and Advancing Quantum R&D
No full textThe expected societal impact of quantum technologies (QT) urges us to proceed and innovate responsibly. This article proposes a conceptual framework for Responsible QT that seeks to integrate considerations about ethical, legal, social, and policy implications (ELSPI) into quantum R&D, while responding to the Responsible Research and Innovation dimensions of anticipation, inclusion, reflection and responsiveness. After examining what makes QT unique, we argue that quantum innovation should be guided by a methodological framework for Responsible QT, aimed at jointly safeguarding against risks by proactively addressing them, engaging stakeholders in the innovation process, and continue advancing QT (‘SEA’). We further suggest operationalizing the SEA-framework by establishing quantum-specific guiding principles. The impact of quantum computing on information security is used as a case study to illustrate (1) the need for a framework that guides Responsible QT, and (2) the usefulness of the SEA-framework for QT generally. Additionally, we examine how our proposed SEA-framework for responsible innovation can inform the emergent regulatory landscape affecting QT, and provide an outlook of how regulatory interventions for QT as base-layer technology could be designed, contextualized, and tailored to their exceptional nature in order to reduce the risk of unintended counterproductive effects of policy interventions.
Laying the groundwork for a responsible quantum ecosystem, the research community and other stakeholders are called upon to further develop the recommended guiding principles, and discuss their operationalization into best practices and real-world applications. Our proposed framework should be considered a starting point for these much needed, highly interdisciplinary efforts
