Berkeley Law Research Articles

Toward a New Student Insurgency: A Critical Epistolary

Taking the form of an epistolary (a collection of letters), this law review article explores the relationship between law and social change in the context of student activism at the University of California, Berkeley, School of Law (Berkeley Law formerly Boalt). This author’s contribution to this essay examines the simultaneously linear and circular history of social justice activism at Berkeley Law and discusses the relationship between social crises and resurging waves of activism, focusing on student activism in the sphere of legal scholarship.

Restoring Free Speech and Liberty on Campus (review)

Reviewed by: Restoring Free Speech and Liberty on Campus John Wesley Lowery (bio) Donald Alexander Downs. Restoring Free Speech and Liberty on Campus. Oakland, CA: The Independent Institute, 2005. 318 pp. Cloth: $25.00. ISBN: 0-521-83987. There has been considerable debate over the past 20 years about threats to free speech and civil liberties at colleges and universities throughout the United States. This debate began in the late 1980s with widespread concern about "political correctness." In recent years, groups such as the Foundation for Individual Rights in Education (FIRE) and the Center for the Study of Popular Culture, led by David Horowitz, have done a great deal to focus public attention on these issues. In Restoring Free Speech and Liberty on Campus, Donald Alexander Downs examines the [End Page 413] nature and evolution of these threats. He provides case study analyses of the specific problems encountered on four college campuses. Lastly, Downs suggests an approach for responding to these threats when they arise on campus. Downs is, by his own admission, a somewhat unlikely author on this topic, having argued that the U.S. Supreme Court should not have supported the rights of the National Socialist Party of America to march in Skokie, Illinois (Downs, 1985) and having voted to adopt the faculty and student speech codes at the University of Wisconsin in 1988. In Part 1, Downs considers the factors that contributed to this retreat from civil liberties on campus. He acknowledges that many of these measures were intended to "foster civility, tolerance, and respect for racial and cultural diversity," (p. xv), but were themselves, in the end, unjust. He cites three major reasons: "changes in intellectual, pedagogical, political, and administrative culture" (p. 13), the failure of faculty and students to mobilize against threats to civil liberties, and a lack of knowledge within the higher education community about "basic constitutional rights and the reasons for taking constitutional liberty seriously" (p. 13). A key change began in the 1960s with the emergence of theories of oppression, which advocated censorship to further social justice. Important scholars advocating this position included Herbert Marcuse, Catherine MacKinnon, and Richard Delgado. As these perspectives gained prominence and were coupled with changes in the culture of institutional leadership at the highest levels, institutions began, in 1987, to adopt speech codes. Within five years, more than 300 institutions had such codes. After examining the emergence of these trends, Downs turns to four case studies in Part 2 to examine in greater detail the cultural and political forces on campus contributing to these threats to freedom and civil liberties. In 2000, Columbia University adopted a radical new sexual misconduct policy which was designed to encourage victims to report sexual assaults to the university administration. The Columbia policy merged the responsibility for both sexual assault education and adjudication of allegations of sexual assault in the same office. During the period of policy's consideration, virtually no one on campus publicly voiced concerns about the proposed policy; and a number of student groups, especially SAFER, worked for its adoption. The most important factor at Columbia University that led ultimately to significant changes in the policy was the involvement of the FIRE, which succeeded in attracting considerable press attention, including coverage in the Wall Street Journal and Village Voice. This coverage created an environment in which both trustees and students began to speak out forcefully against the policy. Downs also considers a series of disputes at Berkeley, including those arising from the decision of the Daily Californian to publish an anti-slavery reparations advertisement funded by David Horowitz. Berkeley's Law School had significant debates, especially regarding affirmative action, in the law school. Downs raises concerns that some with the law school sought to silence views that dissented from their own and that the administration and faculty did not do enough to foster an environment of open expression. In 1993, an undergraduate student at the university faced formal disciplinary charges for calling a group of African American women who were loud outside his residence hall "water buffalos." The chapter on the water buffalo case at the University of Pennsylvania covers ground described by a number of different sources but...

Rules, Gaps and Power: Assessing Reform of the U.N. Charter

light of several recent international legal and political crises, a wide spectrum of proposals has emerged to reform the rules of the United Nations Charter. These proposals range from broadening the right of states to use force in self-defense to allowing states to conduct humanitarian interventions without the approval of the Security Council. This article presents a framework for assessing such reform proposals that examines the ways in which states' decision-making processes interact with legal rules to cause certain uses of force to be undertaken while others are avoided. Using this framework, this article argues that, regardless of whether they are legally desirable, the most prevalent reform proposals are unlikely to alleviate the system's problems in a tangible way. Instead, the United Nations' member states must conduct a thorough analysis of how the organization can restructure itself to play a more productive role in ensuring international security. [T]he UN must undergo the most sweeping overhaul of its 60-year history. Kofi Annan 1 Why have this building? What is it all about? John Danforth 2 Associate, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C. The author thanks Professors Jane Stromseth, Sean D. Murphy, Eric Posner and Michael Glennon for their helpful comments and suggestions. 1. Kofi Annan, In Larger Freedom : Decision Time at the UN, 84 FOREIGN AFF. 63, 66 (2005) [hereinafter Larger Freedom]. 2. Philip Gourevitch, Power Plays, NEW YORKER, Dec. 13, 2004, at 35 (reporting John Danforth's frustrations with the United Nations, which were expressed the day before he resigned as United States Ambassador to the United Nations). Published by Berkeley Law Scholarship Repository, 2006 BERKELEY JOURNAL OF INTERNATIONAL LAW

The Conspirator Dilemma: Introducing the "Trojan Horse" Enforcement Strategy

School of Law, Boalt Hall U.C. Berkeley Law and Economics Working Paper Series Working Paper 2001 - 2 The Conspirator Dilemma: Introducing the “Trojan Horse” Enforcement Strategy Omri Yadlin Tel Aviv University, Law School School of Law Center for the Study of Law and Society University of California Berkeley, California 94720

Internet Privacy and the State

Berkeley Law Berkeley Law Scholarship Repository Faculty Scholarship Internet Privacy and the State Paul M. Schwartz Berkeley Law Follow this and additional works at: http://scholarship.law.berkeley.edu/facpubs Part of the Law Commons Recommended Citation Paul M. Schwartz, Internet Privacy and the State, 32 Conn. L. Rev. 815 (1999), Available at: http://scholarship.law.berkeley.edu/facpubs/766 This Article is brought to you for free and open access by Berkeley Law Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jcera@law.berkeley.edu.

Social De-Construction of Race and Affirmative Action in Jury Selection

Recent race riots offer powerful and disturbing images and evidence of the cost of ignoring the apparent unfairness of court decisions made by all white juries. In the eyes of many marginalized segments of the community, the conviction of a black defendant or acquittal of a white defendant by an all white jury, against overwhelming evidence of his guilt, is deeply disturbing. The fact that a jury is all white has the powerful effect of racializing the jury proceeding. In the post-Civil War south, a series of similar atrocities occurred when the Ku Klux Klan's frenzy of violence and lynching , targeting blacks and white Republicans, went unpunished by all white juries. It is notorious that practically never have white lynching mobs been brought to court in the South, even when the killers are known to all in the community and are mentioned in name in the local press, Gunnar Myrdal's 1944 work on race relations once declared.' Today, issues of racially mixed juries and racial balance in cases involving inter-racial crimes pose unique challenges to our judiciary, our criminal justice system, and the community. This article examines possible applications of affirmative action in jury selection to create racially heterogeneous juries. Since race-conscious affirmative action must rely on the clear conceptualization of race and racial definitions, the article first presents critical analysis of the conceptualization and formulation of race and racial classification. Specifically, the first section of this article attempts to deconstruct racial identity as defined by government-defined racial categories, suggesting that race is a social construction and racial identity is subject to individual and societal manipulation. This allows many individuals to pass as members of different racial groups. The article then empirically examines public perceptions of the affirmative jury structures, focusing on the use of mandatory racial quotas to engineer racially heterogeneous juries in criminal trials, specifically the jury de medietate linguae, the Hennepin model, the social science model, and a peremptory inclusive selection method. The article finally argues that, given the strong endorsement for the Hennepin and social science models of affirmative juries, both legislative and court-initiated actions may be needed to energize the public debate concerning the importance of racially mixed juries, the size of mandated racial quotas, and implications regarding applications of affirmative action in jury proceedings. t Associate Professor of Sociology, University of California, Santa Cruz. Ph.D. & M.A., University of California, Riverside, 1985 & 1982; B.A., California State University, Fullerton, 1979. 1 am very grateful to Ian F. Haney Lopez for his helpful comments on the social deconstruction of race as well as John Brown Childs, G William Domhoff, and Richard Krooth for their critical comments on the earlier version of this article. 1. GUNNAR MYRDAL, AMERICAN DILEMMA 552 (1944). 1 Fukurai: Social De-Construction of Race and Affirmative Action in Jury Sel Published by Berkeley Law Scholarship Repository, 1999