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Open Access Publications from the University of California
Cover page of Is DNA Evidence Relevant?

Is DNA Evidence Relevant?

(2020)

In admitting DNA sample taken at the crime scene in 2010 to compare it with a DNA sample taken from the defendant in 2020 courts assume that the defendant’s DNA has not changed in the prior ten years. This article questions that assumption using scientific findings published in the journals Scientific American and Science News.

Cover page of Is DNA Evidence Relevant: The Sequel

Is DNA Evidence Relevant: The Sequel

(2020)

In admitting DNA sample taken at the crime scene in 2010 to compare it with a DNA sample taken from the defendant in 2020 courts assume that the defendant’s DNA has not changed in the prior ten years. This article questions that assumption using scientific findings published in the journals Scientific American and Science News.

Cover page of An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection

An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection

(2019)

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a university’s affirmative-action plan that specifically targets Black women, the Essay considers what tier of scrutiny should apply. Because, for the most part, scholars take a race or gender approach to equal-protection law, they have not engaged that doctrinal puzzle and its implications for tiers-of-scrutiny writ large.

Cover page of Teacher’s Manual for <em>The Past, Present and Future of the Safe Drinking Water Act</em>

Teacher’s Manual for The Past, Present and Future of the Safe Drinking Water Act

(2019)

Thanks for considering teaching this primer on SDWA. I enjoy teaching this in the classroom and there are a lot of different entry points for productive discussion. Rather than provide canned lecture notes, below I describe the key points I raise when teaching the materials and opportunities for class discussion. The specific topics are set out in bold below for easier identification. Please contact me at salzman@ucsb.edu if you have any questions about the materials.

When teaching SDWA, I briefly highlight drinking water issues in the news (such as Newark or PFOA and PFAS contamination in the Fall of 2019), but I then turn to history. I ask the students to place themselves 500 years ago or 1500 years ago and ask what they would do were they charged with providing safe drinking water to their community. It turns out the challenges are identical to today.

Cover page of The Past, Present and Future of the Safe Drinking Water Act

The Past, Present and Future of the Safe Drinking Water Act

(2019)

The Safe Drinking Water Act (SDWA) has long been "the statute that environmental law courses forgot." It receives scant or no coverage in all but a few environmental law casebooks and is not covered in most environmental law courses. After Flint, though, drinking water problems have become high profile and SDWA's exclusion seems increasingly untenable. The law raises important issues of cost and risk assessments, environmental justice, federalism, private governance, and human rights, among others. To encourage teaching the statute, this chapter is intended for a course syllabus. Twenty pages long, it is written in an accessible style and covers the history of the law, its key provisions, successes, and challenges. To stimulate classroom discussion, it includes a Questions and Discussion section and Teacher's Manual. The text is free for all non-commercial use.

Cover page of Functions of Geoengineering Research Governance

Functions of Geoengineering Research Governance

(2019)

Proposed geoengineering interventions, like other high-stakes and potentially disruptive technologies, present both a compelling case for expanded research to inform future decisions, and significant concerns about societal harms that may follow from this research, directly or indirectly. In response, there have been widespread calls to both expand research and govern this research with greater care and scrutiny than typical of the normal processes that govern all research areas. We propose that for geoengineering and similarly controversial issues, governance of research must fulfill three broad functions. First, processes are needed that enable reliable research, by providing the authorization, resources, and management necessary for research to proceed, together with the strategic planning and quality controls to ensure that research results are useful and relevant to inform societal choices. Second, processes are needed to assess potential harms or risks from research activities and ensure that these are appropriately managed. These potential harms may include both direct physical risks, and indirect risks mediated by social, economic, or political processes. Finally, processes are needed to support the legitimacy of the research program, by ensuring that the topics, methods, and conduct are compatible with relevant legal, political, and moral principles and are broadly acceptable to affected citizens. These requirements may interact closely with the processes that serve the first two functions, by requiring that research priorities, aims, conduct, participants, and results are transparently and promptly disclosed, that relevant citizen and stakeholder groups are consulted, and that broader implications of proposed research are acknowledged and addressed. Drawing on the concerns expressed in the current geoengineering debate, and on experience conducting and governing research in other areas, we discuss alternative concrete ways to provide these functions for geoengineering research. This paper was prepared as input to a workshop of senior state officials considering the implications of potential geoengineering research for California.

Cover page of Lying, Reciprocity, and Free Speech – A Reply to Eight Critics

Lying, Reciprocity, and Free Speech – A Reply to Eight Critics

(2019)

In this article, I reply to eight critics of my book Speech Matters: On Lying, Morality, and the Law. The topics include lying, promising, reciprocity, free speech, and the testimonial duties of institutions.

Cover page of Faculty Law Review Articles, 1894-2017

Faculty Law Review Articles, 1894-2017

(2018)

A list of hundreds of law review articles written by faculty members on the subject of "evidence"---narrowly defined to include only those topics covered by the Federal Rules of Evidence or its state clones. Readers who find their articles missing should notify the author who will add them to the next supplement.

Cover page of Lexipol: The Privatization of Police Policymaking

Lexipol: The Privatization of Police Policymaking

(2018)

This Article is the first to identify and analyze the growing practice of privatized police policymaking. In it, we present our findings from public records requests that reveal the central role played by a limited liability corporation—Lexipol LLC—in the creation of internal regulations for law enforcement agencies across the United States. Lexipol was founded in 2003 to provide standardized policies and training for law enforcement. Today, more than 3,000 public safety agencies in thirty-five states contract with Lexipol to author the policies that guide their officers on crucial topics such as when to use deadly force, how to avoid engaging in racial profiling, and whether to enforce federal immigration laws. In California, where Lexipol was founded, as many as 95% of law enforcement agencies now rely on Lexipol’s policy manual. Lexipol offers a valuable service, particularly for smaller law enforcement agencies that are without the resources to draft and update policies on their own. However, reliance on this private entity to establish standards for public policing also raises several concerns arising from its for-profit business model, focus on liability risk management, and lack of transparency or democratic participation. We therefore offer several recommendations that address these concerns while also recognizing and building upon Lexipol’s successes.

Cover page of Movement Lawyering

Movement Lawyering

(2017)

This Article explores an important development in American legal theory and practice over the past decade: the rise of “movement lawyering” as an alternative model of public interest advocacy focused on building the power of nonelite constituencies through integrated legal and political strategies. Its central goal is to explain why movement lawyering has gained prominence, define its essential features, and explore what it reveals about the current state of efforts to work out an empirically grounded and normatively appealing vision of the lawyer’s role in social change. Toward that end, this Article shows how movement lawyering has long been an important part of progressive legal practice—complicating the standard historical account—while also illuminating the contemporary political and professional shifts that have powered the recent social movement turn. Synthesizing insights from social movement theory and practice, the Article then defines and analyzes the core features of the movement lawyering model—representing “mobilized clients” and deploying “integrated advocacy”—and explores how these features respond to long-standing critiques of public interest advocacy by presenting movement lawyers at their most accountable and effective: taking instructions from activist organizations in client-centered fashion and using law in politically sophisticated ways designed to maximize the potential for sustained social reform. In doing so, the new movement lawyering literature usefully refocuses attention on fundamental questions about the lawyer’s role in social change and thereby offers a crucial opportunity to jumpstart a contemporary dialogue—less freighted with the critical canon of the past and more rooted in empirical inquiry—about the conditions in which lawyering is most likely to produce accountable and effective democratic transformation.