Incompetent but Deportable: The Case for a Right to Mental Competence in Removal Proceedings

Fatma E. Marouf

Volume 65, Issue 4, 929-99

Important strides are currently being made toward increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found mentally incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding such as removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial of incompetent defendants apply to removal proceedings. Competence is necessary to protect the fairness and accuracy of the proceedings, safeguard statutory and constitutional rights, uphold the prohibition against in absentia hearings, and preserve the moral dignity of the process. In addition removal can represent an extension of the criminal process. This Article explores potential concerns about recognizing a right to competence, such as exposing the respondent to indefinite civil commitment and forfeiting the opportunity to pursue applications that could lead to being granted legal status by the immigration court. A closer examination of these concerns suggests that they may be less serious than they initially appear. Finally, the Article explores some alternatives to recognizing a right to competence and explains why they fail to provide sufficient protection.

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Neuro-Voir Dire and the Architecture of Bias

Dov Fox

Volume 65, Issue 4, 999-1042

Courts and commentators routinely assume that “bias” on the jury encompasses any source of influence upon jurors that does not come directly from the evidence presented at trial. This sweeping conception of juror bias is flawed because it fails to distinguish the prejudices and affinities that infect jury decisionmaking from the experiences and perspectives that enrich it. This Article uses a thought experiment informed by the neuroscience of bias to illuminate the complexity of juror influences that go by the name of bias. I distinguish four distinct categories of juror influence: personal interests, community interests, case-specific beliefs, and case-general beliefs. I apply this spectrum of juror bias to provide a sounder way to think about what kind of juries we want.

I argue that trial courts should limit the interrogation and disqualification of prospective jurors to personal interests in the case—whether social or financial—and to case-specific beliefs arising from pretrial facts or rumors about the parties or events. By contrast, I would permit no such wholesale exclusion, either for community interests, which range from principles of justice to desires for vengeance, or for case-general beliefs about social causes or groups, which span scruples to dogmatism, and empathy to bigotry. My proposal to abolish challenges for these latter categories of outside influence raises the serious concern that accommodating their presence on the jury risks facilitating unjust outcomes, jury nullification, and hung juries. Trial courts should mitigate these risks by adopting two bias-tempering measures. First, jury pools should be diversified in ways that
social cognition research suggests would attenuate the influence of unreflexive or objectionable attitudes. Second, judges should instruct deliberating jurors to express, along with their own position, the strongest counterarguments to it, so as to disrupt exaggerated assumptions of division and facilitate openness to persuasion.

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The Seventeenth Amendment and Federalism in an Age of National Political Parties

David Schleicher

Volume 65, Issue 4, 1043-99

Despite it being the constitutional amendment that most directly altered the structure of
the federal government, little is known about how and why the Seventeenth Amendment
was enacted. Existing scholarship on why the Constitution was amended to require direct
elections for U.S. Senators, rather than having them appointed by state legislatures, has
troubled accounting for two major puzzles. Why were state legislatures eager to give away
the power to choose Senators? And why was there virtually no discussion of federalism
during debates over removing a key constitutional protection for states governments?

This Article offers a theory that can provide an answer to both of these questions. Support
for direct elections was, at least in part, a result of the rise of ideologically coherent,
national political parties. The rise of truly national parties meant that state legislative
elections increasingly turned on national issues, as voters used these elections as means to
select Senators. State politicians and interest groups supported direct elections as a way of
separating national and state politics. Advocates of repealing the Seventeenth Amendment
claim the mantle of federalism, but repeal would reduce the benefits of federalism,
making state legislatures into something akin to electoral colleges for U.S. Senators.

While important in its own right, the history of the Seventeenth Amendment can also
teach us a great deal about how federalism functions in eras of strong national political
parties. First, national political parties have not generally served as “political safeguards
of federalism,” but instead have made state politics turn on national issues. Second,
despite the Seventeenth Amendment, state elections still largely turn on national politics.
Although state issues are sometimes important, the most important factor in state
legislative elections is the popularity of the President. To achieve the benefits for state
democracy sought by supporters of the Seventeenth Amendment, election law reform
would be more effective than structural constitutional changes.

Full Article

Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation

Andrew Jay McClurg

Volume 65, Issue 4, 1099-1144

With seventy-eight million baby boomers in or nearing retirement, elder financial
exploitation has been labeled the “Crime of the 21st Century,” yet little has been
done to address the problem. While states and the federal government have passed
hundreds of laws protecting children based on the assumption they are vulnerable
and unable to protect themselves, older at-risk adults have been comparatively
ignored despite extensive research showing they too are vulnerable.

A substantial roadblock to prosecuting elder financial predators is the inability to prove
that the financial transfers at issue were the result of exploitation rather than legitimate
transactions. Many victims “voluntarily” part with their assets. To outsiders, the transfers
may look like gifts or loans when in fact they occur because of undue influence,
psychological manipulation, and misrepresentation. Even when property is taken by
stealth, the incapacity or death of the victim often precludes prosecutors from being able
to prove that the transfers were not legitimate.

This Article proposes the adoption of state criminal statutes that create a permissive
presumption of exploitation with regard to certain financial transfers from elders. The
Article offers a specific statute and explains how it would be workable and constitutional.
Preliminarily, the Article explores the scope of elder financial exploitation, discusses why
it is grossly underreported and under-prosecuted, and analyzes practical, cognitive, and
psychological reasons why older adults are vulnerable, focusing on emerging research
showing that even elders who lack obvious impairments are at risk.

Full Article

Perspectives on Criminal Litigation Ethics: James Cole & Jeffrey Adachi

James Cole & Jeffrey Adachi

Volume 65, Issue 4, 1145-63

In August 2013, U.C. Hastings College of the Law was honored to host its first ever MCLE conference addressing “Criminal Litigation Ethics.” MCLE, of course, means “mandatory continuing legal education,” and I was pleased to organize a conference that addressed, in an academic setting, this vital topic of practical lawyering that appears in
the headlines almost every day. Our unique objective was to provide two full days of hands-on training by nationally prominent criminal defense and prosecution lawyers, for litigating lawyers as well as law students, separated by setting and geography from the competition of daily practice. The conference was a huge success, not the least because of our two keynote speakers, U.S. Deputy Attorney General James Cole, and San Francisco Public Defender Jeffrey Adachi—both nationally renowned criminal lawyers and U.C. Hastings graduates.

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Note – Drill Here Not There: Petroleum Leasing and Conservation in Alaska’s National Petroleum Reserve

Joel Aurora

Volume 65, Issue 4, 1165-90

This Note analyzes the Department of the Interior’s recent decision to close off several
million acres of the National Petroleum Reserve-Alaska (“NPR-A” or “Reserve”)
from oil and gas leasing while allowing petroleum development on discrete areas of the
Reserve. After discussing the Reserve’s history, this Note examines the Alaska National
Interest Land Conservation Act of 1980 and its relevance to the NPR-A, and analyzes
the petroleum industry’s potential legal arguments against the Interior’s decision. This
Note also argues that the Department of the Interior’s decision is in accordance with its
administrative powers because the Secretary’s decision should not be considered a
formal public land “withdrawal,” but rather, a discretionary decision to deny lease
issuances within certain areas of the Reserve.

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Note – Say-on-Pay with Bite: Shareholder Derivative Suits on Executive Compensation

Louis Truong

Volume 65, Issue 4, 1191-1220

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 mandated
shareholder advisory voting for executive compensation in public corporations. This
vote, known as “say-on-pay,” enables shareholders to provide input on the size and
nature of executive compensation packages. The impetus behind mandating say-on-pay is
the concern that corporate executive pay has grown increasingly excessive. To that end,
say-on-pay has not been successful, as the first three years of voting have not produced a
significant effect on executive pay. However, the voting results have suggested changes in
other ways, indicating that shareholders can be influenced in the decisionmaking process
for executive pay.

Due to the advisory nature of say-on-pay, shareholders have few methods of recourse in
the event that a corporation chooses to ignore shareholder input. Shareholders generally
lack sufficient power to influence corporations and their boards. Shareholders have had
little success through litigation, as courts have been reluctant to consider a say-on-pay
vote as the basis for establishing demand futility, a pleading requirement for shareholder
derivative suits.

This Note argues that a say-on-pay vote should be sufficient for establishing demand
futility in limited circumstances. Courts should apply a stricter standard of judicial review
when directors ignore a say-on-pay vote, placing the onus on the directors to show that
they properly considered the vote, and that the compensation packages for executives
were reasonable. Enabling shareholders to use the threat of litigation provides extra
muscle for say-on-pay, making it a more effective mechanism for controlling executive

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