University of California Hastings College of the Law
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The Purpose and Practice of Precedent: What the Decade Long Debate Over Stare Decisis Teaches Us About the New Roberts Court
No full textThe Supreme Court’s tectonic decision in Dobbs v. Jackson Women’s Health upended the Doctrine of Substantive Due Process by radically reinterpreting the doctrine of stare decisis. The Court’s established practice regarding stare decisis should have operated to preserve the fifty-year-old abortion jurisprudence. But we should have seen this change coming. Although there has been an intense and involved debate over the purpose and practice of precedent for generations, that debate shifted at the beginning of 2018. Four approaches to stare decisis emerged along a continuum, from complete abandonment of the doctrine and incremental erosion to modernized adherence to precedent. This article examines how six key cases not only laid the foundation for the new stare decisis doctrine articulated in Dobbs, but it considers what we might expect from this Court as the Justices try to convince others to embrace one or a mixture of these four perspectives
Torn Between the Two: Practicing Law or Religion
No full textUnited States courts have long struggled to define the intersection of public institutions and religious practices. Though higher education institutions aim to enrich their campuses with diverse communities, they often fail to cultivate an inclusive culture for them. One minority community that has long faced experiences of exclusion is Muslim law students.
According to the Pew Research Center, Islam is the fastest-growing religion worldwide. Despite their growing presence, Muslims remain a minority and face exorbitant levels of Islamophobia. Due to these issues, law schools lack familiarity with Muslim practices and are hesitant to learn, making it challenging for Muslim students to obtain religious accommodations. Requesting religious accommodations or other support is more multifaceted than it may seem. Balancing individual religious practices with avoiding government entanglement in religion is delicate. The First Amendment’s Free Exercise and Establishment Clauses, along with federal and state regulations, outline that public law schools are required to provide religious accommodations when it would fail to protect a student’s Free Exercise rights. Additionally, law schools should offer these accommodations to further campus inclusivity and student performance.
This Note is divided into three Parts. Part I highlights the historical background of Islamophobia and its impact on students in higher education, as well as the legal obligations and limitations for law schools in providing religious accommodations. Part II examines the obstacles Muslim law students encounter, which hinder their ability to practice their faith whilst being a student. These obstacles could be limited if certain religious accommodations are in place. Part III presents recommendations to law schools, based on the various problems described in Part II, on how to provide a constitutionally accommodating space on campus
The Inadmissibility of Victim Impact Evidence
No full textCurrently, 41% of inmates on death row in the United States are Black, even though Black people make up only 13.6% of the total population in the country. Additionally, the data has repeatedly shown that states that do not have the death penalty have lower murder rates than states that do. Despite these disparities, more than half of states in the United States continue to allow capital punishment in some form as an alternative to a life sentence. These disparities were further exacerbated by the Supreme Court’s decision in Payne v. Tennessee, which allowed prosecutors to introduce victim impact evidence in the sentencing phase of death penalty proceedings. Due to the widespread implementation of the death penalty across the states in this country, it is unlikely that the Court would abolish the death penalty in the near future. Thus, a compromise to alleviate some of the inequalities in capital punishment, without removing it in its entirety, is for the Supreme Court to reverse its decision in Payne and hold that admission of victim impact evidence is unconstitutional under the Eighth and Fourteenth Amendment. The central aim of this paper is to demonstrate that victim impact evidence has no place in death penalty sentencing proceedings because it has no bearing on the defendant’s culpability and moreover it has a prejudicial effect on the defendant’s verdict. First, I will argue that victim impact evidence is irrelevant for a juror’s determination of a defendant’s culpability for three reasons (1) the evidence shifts the jury’s attention from the defendant’s background to the victim’s background; (2) a defendant is often unaware of their victim’s personal circumstances; and (3) a defendant’s introduction of victim impact evidence to show the victim’s less favorable characteristics often does not influence a defendant’s culpability. Next, I will demonstrate that victim impact evidence has a prejudicial effect on the defendant because of the arbitrariness of several factors including (1) whether the victim’s family can articulate their emotions in a way that resonates with the jury; (2) jurors’ lack of cultural competence; and (3) viewpoint and racial bias in jury selection. Thus, to reduce some of the disparities in a criminal system that is already unequal, it is imperative for the Court to prohibit victim impact evidence in death penalty proceedings
False Conscience: Sustainability and Smart Evolution—Between Law and Power
No full textThe contribution describes the legal phenomenon as a playing field characterized by a progressive regression of the law, understood as a sovereign will from top to bottom, both in the vision of formalist legal positivisms in continental Europe and in realist terms, in the United States. Soft law represents the main strategy to subordinate the law to the interests of the economy, elasticizing environmental law, making it favorable to the market, reducing ecology to the simplistic metric of CO2 emissions. The consequence is a retreat of the statist vertical normativity of law which is not replaced by a de facto power granted to those who control the technology, built by design to close spaces for pluralism and democratic action, in the interest of surveillance and concentrated power in private and government oligopolies. The author concludes by advocating the urgency for genuinely innovative categories, particularly in the legal education, such as the commons, capable of including sustainability into a “new ecological jurisprudence committed to inclusion and solidarity rather than exclusion and struggle”