California Constitutional Law: The Right to an Adequate Education

Anne D. Gordon

Volume 67, Issue 2, 323-66

Plaintiffs’ victory in Vergara v. State, a case about teacher evaluation and employment regulations, has thrust the issue of educational adequacy into the spotlight in California. Campaign for Quality Education v. State, a case based on the California Constitution’s education clause, has been fully briefed before the California Supreme Court and is waiting to be set for argument. These cases require California courts to again look to the constitution to determine what the right to education means. Although the California Supreme Court found this right fundamental over forty years ago, no supreme court decision has yet articulated whether this right encompasses the right to an adequate education. There is no dearth of scholarship about adequacy on the national level, but no scholarship has yet synthesized constitutional history and case law in California to test how the court should decide the case. Examining these factors, as well as the failure of the dominant doctrine⎯equal protection⎯to define and ensure the right, this Article proposes an adequacy jurisprudence that comports with California’s unique circumstances, its history and precedent, and the purposes of education in this state. The need for such an approach has never been greater.

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Inconsistency and Angst in District Court Resolution of Social Security Disability Appeals

Harold J. Krent and Scott Morris

Volume 67, Issue 2, 367-406

This study of federal court decisionmaking asks whether characteristics of a jurist including age, race, gender, and work experience, can affect results in the context of the nation’s most frequently litigated administrative law dispute—social security disability claims. SSDI cases by and large are similar, turning most frequently on claims of mental illness and muscular skeletal pain. Thus, there is ample room for discretion among ALJs and federal judges in determining whether an applicant is entitled to benefits.

The results are remarkable both in what they showed and did not show. First, decisionmaking patterns among district court judges and magistrates both reveal the same kind of inconsistencies that plague ALJ adjudication more generally. The results of an SSDI appeal might turn more on the hap of which judge or magistrate is slated to review the appeal than on the merits of the case.

Second, if the cases are similar, the question arises as to what explains the difference in outcomes. Again, the results are striking in that no correlation can be drawn between results and the race, gender, seniority, and job experience of the jurist. Nor can they be explained by geography or the percentage of disabled within the region.

Third, although sociological attributes did not explain much of the variation in resolution of the cases, we noted a substantial correlation between remand rates and the circuit in which the judges and magistrates sat. Remand rates from both judges and magistrates in the Tenth, Seventh, and Ninth Circuits, for instance, were almost double those from judges and magistrates in the First and Fourth Circuits. The statistics strongly suggest that the “culture’ within a particular judicial circuit makes a substantial difference in such decisionmaking.

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Remedial Clauses: The Overprivatization of Private Law

Seana Valentine Shiffrin

Volume 67, Issue 2, 407-42

This Article considers the growing trend to enforce liquidated damages agreements or what I think are more felicitously called “remedial clauses.” I criticize this trend on the grounds that a permissive approach to enforcing remedial clauses contravenes important public values. Although many have claimed the traditional presumption against such clauses is mysterious or unsupported, I contend that the traditional presumption against such clauses enforces important values central to the rule of law, including that private parties should not decide their own cases and that the public has a special interest in deciding what remedies are appropriate for breaches of legal duty. In delineating the theoretical foundations for treating remedial clauses differently than performance terms, I offer a distinctive, liberal, and democratic perspective on contract and contractual breach that answers the common arguments offered by libertarians and law and economics scholars that freedom of contract requires the contrary.

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Network Equality

Olivier Sylvain

Volume 67, Issue 2, 443-98

One of the clear goals of the federal Communications Act is to ensure that all Americans have reasonably comparable access to the Internet without respect to whom or where they are. Yet the main focus of policymakers and legal scholars of Internet policy today has been on promoting innovation, a concept that Congress barely invokes in the statute. The flagship regulatory intervention for this approach is “network neutrality,” a rule that forbids Internet providers from blocking or interfering with users’ connections. To the extent that net neutrality addresses the distributional goals of communications law, it posits that openness will foster innovation which, in turn, will draw user interest which, in turn, will induce investment in more and better infrastructure which, in turn, will benefit today’s underserved. This is the trickle down theory of Internet innovation.

This Article critiques this approach. While it has its merits, the privileging of innovation in communications policy could exacerbate existing racial, ethnic, and class disparities because the quality of users’ Internet connections refract through those persistent demographic variables. This Article calls for a return to the distributional equality principle at the heart of communications law and policy.

The Internet is essential to almost every aspect of our lives. Like electricity a century ago, it is a technology that determines how we work, campaign, exercise, learn, heal, and love. The benefits of a high-quality Internet connection are especially importantindeed more importantfor racial minorities, poor people, and all others who must negotiate structural inequalities in other aspects of their lives in ways that advantaged people do not. Policymakers and scholars accordingly must affirmatively further equality in Internet access, or at least adopt a regulatory approach that seeks above all to ensure equality. The Internet is too indispensable to rely on innovation alone.

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Beyond Control and Without Fault or Negligence: Why Japan Should Be Excused from Meeting Its Kyoto Protocol Obligations

Regina Durr

Volume 67, Issue 2, 499-530

The purpose of this Note is to show how force majeure can excuse Japan from its reduced CO2 emissions target due under the Kyoto Protocol. The Kyoto Protocol is the first and only binding international agreement to reduce CO2 emissions amongst industrialized and developing countries. This Note draws upon contract principles and data sources, including political news sources and environmental studies, to demonstrate how the elements of a force majeure event were met in the wake of the earthquake and tsunami of March 2011 that led to the Fukushima Daiichi Nuclear Power Plant disaster. Through showing how far-reaching simultaneous acts of God can be, this research highlights the importance of a holistic approach in shaping the enforcement of an international agreement like the Kyoto Protocol.

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Sex Trafficking Legislation Under the Scope of the Harm Principle and Moral Panic

Lesley Rae Hamilton

Volume 67, Issue 2, 531-64

On May 20, 2014 the House of Representatives passed the Stop Advertising Victims of Exploitation Act of 2014 (“SAVE Act”). The SAVE Act would have amended the federal criminal code to prohibit “advertising commercial sex acts involving a minor or an individual engaged in such an act through force, fraud, or coercion.” In so doing, the SAVE Act would provide grounds for legal action against Internet content hosts for crimes—like sex trafficking—resulting from the postings of third-party users.

This Note applies the social theories of the harm principle and moral panic to evaluate the means and ends proposed by the SAVE Act. Using multiple constructions of the harm principle, this Note argues that the SAVE Act is unjustified because it does not directly or indirectly prevent the harm of sex trafficking from occurring, it inappropriately places culpability on Internet content hosts for the criminal acts of others, and it creates new, additional harms to society. Through the lens of moral panic, this Note argues that the SAVE Act is an injudicious reaction to interest group driven moral panic surrounding the misplaced and exaggerated occurrence of sex trafficking through Internet classified sites.

This multi-tiered analysis is particularly important in evaluating legislation like the SAVE Act that seeks to broadly expand the reach of the federal criminal code in response to public outcry. In such cases, there is increased risk that the loud message of the wrong to the victims projected by politicians, activists, and the media will consume well-reasoned lawmaking. Rather than imposing unjustified criminal liability, this Note proposes to harness the innovative and collaborative potential of the Internet to crowd-source solutions to a better scheme for monitoring online forums and prosecuting sex traffickers. This solution contemplates deconstructing the ways criminals propagate harm through online forums and increasing the resources available to dedicate to the cause to devise an approach that actually minimizes sex trafficking and holds the proper actors culpable..

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