UC Irvine Law Review

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, empathy and other aspects of our cognition can be implicit, thereby shaping our behavior in ways that we are unaware. This challenges the longstanding assumption that a judge can simply put feelings aside when making judicial decisions. Third, there is no basis in neuroscience to support the idea that judges are exempt from these aspects of human cognition. These findings disrupt widespread faith in the unassailable rationality and impartiality of judges, and demonstrate how such views are increasingly at odds with evidence about how our brains work. By offering an original descriptive account of judicial behavior that is rooted in neuroscience, this Article provides a novel exposition of why bias, emotion and empathy have the capacity to influence the choices judges make. Doing so asks us to view judges as the humans they are.

Immigration law has long labeled certain categories of immigrants “undesirable.” One of the longest-standing of these categories is women who sell sex. Current immigration laws subject sellers of sex to an inconsistent array of harsh immigration penalties, including bars to entry to the United States as well as mandatory detention and removal. A historical review of prostitution-related immigration laws reveals troubling origins. Grounded in turn-of-the-twentieth-century morality, these laws singled out female sellers of sex as immoral and as threats to American marriages and families. Indeed, the first such law specifically targeted Asian women as threats to the moral fabric of the United States due to their perceived sexual deviance. Subsequent laws built upon these problematic foundations, largely without reexamining the initial goal of safeguarding American morality from the ostensible sexual threat of noncitizen women. This dark history casts a long shadow, and current laws remain rooted in these archaic notions of morality by continuing to focus penalties on sellers of sex (who tend to be women), without reciprocal penalties for buyers (who tend to be men). Contemporary societal views on sellers of sex have changed, however, as society has come to increasingly tolerate and accept sexual conduct outside the bounds of marriage. Although societal views surrounding prostitution remain complex, there is an increased understanding of the different motivations of sellers of sex, as well as a recognition that individuals forced into prostitution are victims who need protection. Prostitution-related immigration laws should be reformed to no longer penalize sellers of sex, both to bring immigration law in line with modern attitudes towards sellers of sex and to mitigate the discriminatory effect of the archaic and gendered moral underpinnings that initially gave rise to and continue to show in these laws.

Cooperative federalism is one of the most important innovations of American governance. In a cooperative federalism system, the federal government delegates to states the authority to implement a federallycreated program, and those state implementing actions are subject to federal administrative oversight and mandatory review. This basic governance model now pervades federal-state relations and has received enormous amounts of academic attention.

This Article considers whether analogous arrangements make sense for state and local governments. Such arrangements do exist, but they are not nearly as prevalent as their federal-state counterparts, and they have received little attention from scholars. Yet many of the theoretical arguments in favor of traditional cooperative federalism extend to relationships between state and local government. And a review of three long-established, state-local programs—land use regulation in Oregon and Florida and air quality regulation in California—demonstrates that these cooperative subfederalism arrangements can succeed. That success never comes easily, and it depends upon a highly interactive governance model. The divided spheres of traditional federalism theory hold little promise in this realm. Nevertheless, cooperative subfederalism offers a promising alternative to more traditional ways of structuring state-local relationships.

Beyond supporting changes in state and local governance, this study also has implications for traditional federalism doctrine. Most importantly, it undercuts the tendency, which is particularly pronounced in Supreme Court decisions, to assume that state government subsumes the benefits of localism. It also corroborates and extends recent scholarly work emphasizing federalism as a system of governmental integration, and it undermines the Court’s and some commentators’ emphasis on federalism as a system of divided and limited governmental authority.

In 1993, Shaw v. Reno created a doctrine of racial gerrymandering that has now been in existence for twenty-five years. This Article examines the doctrine’s impact over that time—whether it has achieved the goals the Court set out for the doctrine in Shaw and whether it has had other consequences. This Article examines the doctrine’s impact through the lens of the place where the doctrine first took root and has been most heavily litigated over the last twenty-five years—North Carolina’s congressional districts. This Article also draws upon the existing empirical literature in its assessment of the doctrine’s impact. In so doing, this Article represents the first comprehensive assessment of the doctrine. Ultimately, the Article concludes that while more research could and should be done in this realm, racial gerrymandering doctrine does not appear to have achieved the goals the Court set out for it. In addition, the doctrine has likely had little additional impact other than to make districts more compact and cost state governments money for litigation and compliance. For these reasons, the Article concludes that the doctrine should be abandoned absent additional research documenting a systematically meaningful positive impact on American democracy.