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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.

Cover page of Access to Justice: Looking Back, Thinking Ahead

Access to Justice: Looking Back, Thinking Ahead

(2017)

This Article seeks to assess our progress and reassess our goals concerning access to justice. It begins in Part I by summarizing the nature of the challenge. Although there is much we do not know about the scope of the problem, the data available suggest a shameful inadequacy of services for the poor and a declining commitment of federal funds to address it. The remainder of the Article explores the most plausible responses. Part II reviews the role of technology, self-help, and nonlawyer services. Part III analyzes the extent of pro bono contributions and what can be done to increase them. Part IV surveys the evolution and contributions of public interest law, and how best to support it. Part V concludes with an agenda for reducing the justice gap. It argues for greater involvement of legal educators and practitioners in expanding understanding of the problem and supporting the most cost-effective solutions.

Explaining Environmental Information Disclosure in China

(2017)

In recent years, China has adopted a range of measures for information disclosure or “open government information.” This comes as a surprise in an authoritarian system known more for secrecy and information control. Why do authoritarian leaders embrace such mechanisms, and how do state and society actors respond? This Article examines in particular the emergence of environmental information disclosure in China, and makes two main contributions to the scholarly debate on Chinese law and governance.

 

First, this Article demonstrates how local demand for legal transplant can arise out of diverse (and sometimes competing) societal interests. State, society and international actors saw in information disclosure law a range of possibilities - the prospect of improved environmental performance, greater accountability to citizens, and strengthened state control. This interest convergence among strange bedfellows has enabled the seemingly paradoxical flowering of disclosure law in China.

 

Second, this Article unpacks the social effects of information disclosure law in China’s authoritarian bureaucratic governance setting. Where interests are compatible in practice, disclosure has enabled state and society advocacy, and catalyzed new channels for public supervision in environmental regulation. It has also provided a powerful rights-based way for advocates to frame their actions. Yet for all its promise, information disclosure creates risks for those involved and reveals deep tensions in Chinese governance – between authoritarian and bottom-up approaches to rule, and the overarching policy objectives of social stability and performance. These tensions limit the utility of disclosure in practice, with serious potential consequences (e.g., weakened state legitimacy and a hobbled environment) for state and society actors alike.

Rethinking the Foundational Critiques of Lawyers in Social Movements

(2017)

The question of whether lawyers help or hurt social movements has been hotly debated by legal scholars for nearly half a century. As progressive social movements began to decline in the 1970s, scholars developed a powerful critical account of the role that lawyers had played, stressing how lawyer domination and overinvestment in legal tactics had worked against sustainable grassroots activism. Despite significant changes in politics and the profession since the civil rights period, these foundational critiques of progressive lawyering have persisted, fostering profound skepticism about what lawyers can do “for and to” social movements.This Article argues that the current moment invites reconsideration of these critiques. The rise of new social movements -- from marriage equality to Black Lives Matter to the recent mobilization against President Trump’s immigration order -- and the response of a new generation of movement lawyers eager to lend support has refocused attention on the appropriate role that lawyers should play in advancing progressive social change. Rather than fall back on familiar critical themes, the time is ripe for developing a new affirmative vision. This Article seeks to reappraise the foundational critiques of progressive lawyers from the perspective of comparative institutional analysis. This analysis locates lawyers within a broader field of social activism in which nonlegal actors confront their own set of challenges in advancing movement goals: such as struggles over leadership, debates over the desirability of gradual versus radical change, and the constant threat of reversal and backlash. Legal scholars, focusing on what they know best (lawyers and courts), have not investigated the challenges to social movement activism within this broader field, which is the subject of a significant scholarly literature in social science. Drawing on insights from social science research, this Article asks how evaluation of lawyers in social movements might change if the same analytical tools that have been used to spotlight the limits of lawyers and legal advocacy were also applied to nonlegal actors and strategies. What would we learn by comparing the challenges social movements face outside of law to those faced by lawyers mobilizing inside the legal system? This Article’s central claim is that expanding the frame of critical analysis to highlight the parallel challenges that nonlawyers face in advancing social change outside of court weakens the power of critical accounts specific to lawyers. In short, reframing the way we think of social movements can rehabilitate the way we think about lawyers’ contributions to them.

Cover page of The Social Movement Turn in Law

The Social Movement Turn in Law

(2017)

The rise of social movements in US legal scholarship is a current response to an age-old problem in progressive legal thought: harnessing law for social change while maintaining a distinction between law and politics. This problem erupted in controversy around the civil rights–era concept of legal liberalism defined by activist courts and lawyers pursuing political reform through law. Contemporary legal scholars have responded by building on social science to develop a new concept — movement liberalism — that assigns leadership of transformative change to social movements to preserve conventional roles for courts and lawyers. Movement liberalism aims to achieve the lost promise of progressive reform, while avoiding critiques of legal activism that have divided scholars for a half-century. Yet rather than resolving the law-politics problem, movement liberalism reproduces long-standing debates, carrying forward critical visions of law that it seeks to transcend.

Cover page of The Common Law of Pauley Pavilion: Property in Public Places

The Common Law of Pauley Pavilion: Property in Public Places

(2017)

Many writers have analyzed property interests in public spaces such as parking spots or lines of people waiting for an event. This paper considers the right to play on public basketball courts in a specific (but probably not unique) place: the basketball courts at U.C.L.A. In this instance the right to the place also includes a property interest in the game itself. This may interest those who study other cooperative endeavors.

Cover page of Ohio v. Clark: Sir Walter Raleigh Meets Kindergarten Cops

Ohio v. Clark: Sir Walter Raleigh Meets Kindergarten Cops

(2017)

All of the Supreme Court's confrontation decisions since Crawford have dealt with statements to or by adults and government officials. In Clark v. Ohio, the Court faced two issues: (1) are private persons held to the same standards regarding testimonial hearsay as police officers? and; (2) are minors subject to the same confrontation standards as adults? As the concurring opinions point out, the majority opinion by Justice Alito waffled on these two questions. This essay explores these points.

A somewhat different version of this essay will appears as § 6371.8 in the 2017 Supplement to 30A Wright & Graham, Federal Practice and Procedure Evidence.

Cover page of The Puzzle of Social Movements in American Legal Theory

The Puzzle of Social Movements in American Legal Theory

(2017)

In one of the most striking developments in American legal scholarship over the past quarter century, social movements have become central to the study of law.  In constitutional theory, movements have emerged as key drivers of legal reform, creating new constitutional ideals and minimizing concerns of activist courts overriding the majority will.  In lawyering theory, movements have appeared as mobilized clients in the pursuit of social change, leading political struggle and shifting attention away from concerns about activist lawyers dominating marginalized groups.  In a surprising turnabout, social movements—long ignored by legal academics—have now achieved a privileged position in legal scholarship as engines of progressive transformation.  Why social movements have come to play this dramatic new role is the central inquiry of this Article.  To answer it, the Article provides an original account of progressive legal theory that reveals how the rise of social movements is a current response to an age-old problem: harnessing law as a force for social change within American democracy while still maintaining a distinction between law and politics.