Incarcerated people in the federal criminal legal system are uniformly denied privileged email communications with their lawyers. A report by our Samuelson Law, Technology & Public Policy Clinic and the National Association of Criminal Defense Lawyers details misguided policies and concrete harms surrounding this issue — and urges Congress to act.
Title: Preserving Incarcerated Persons’ Attorney-Client Privilege in the 21st Century
Published: On law.berkeley.edu and nacdl.org.
Laurel E. Fletcher’s new article puts the controversy over the law school’s decision to install paintings by Fernando Botero depicting U.S. soldiers torturing prisoners at the Abu Ghraib prison into a broader context and explores what the Boteros have come to mean to the Berkeley Law community.
Title: Let’s Talk about the Boteros: Law, Memory, and the Torture Memos at Berkeley Law
Published in: Berkeley Journal of International Law
Rebecca Wexler exposes injustice in an award-winning paper on how criminal defendants are barred from subpoenaing online communication content — even when it could exonerate them. Using evidence law to assess the Stored Communications Act, she says courts wrongly protect tech companies that use data privacy as a guise for non-disclosure.
COVID-19 has exacerbated concerns that algorithmic decision-making leads to discrimination against people of color. In a paper explaining why efforts to define algorithmic accountability have misfired, Robert Bartlett and three co-authors offer a workable definition rooted in Civil Rights Act case law addressing statistical discrimination.
Analyzing a program that enables federal appellate judges to send Congress opinions that describe possible technical problems in statutes, Tejas Narechania and a co-author see room for improvement. Their paper urges judges to send more opinions to Congress, noting that “the judiciary is uniquely situated to identify problematic statutory text.”
Supreme Court Justice Elena Kagan’s dissent in Seila Law v. CFPB cites a California Law Review article by Stavros Gadinis, noting its finding that independent agencies form the governance bedrock for U.S. financial markets. Gadinis tracks the unraveling of that paradigm, and how politicians have increased influence over banking.
Aaron Edlin and three co-authors won a Jerry S. Cohen Memorial Fund Writing Award for the best antitrust article of 2019 on exclusionary conduct. They examine when competition law and authorities should worry about price cuts by an incumbent monopoly, and propose changes to current U.S. policy that aim to increase consumer welfare.
The Supreme Court will likely soon decide how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. In a paper noting why the amendment’s original conception may dictate the ruling, Orin Kerr applies lessons from Aaron Burr’s 1807 treason trial to compelled decryption of cell phones, computers, and other devices.
David A. Carrillo ’95 and Matthew Stanford of Berkeley Law’s California Constitution Center say valuing the Federal Arbitration Act over state substantive law undercuts key authorities for state sovereignty. Their paper calls this conflict “a battle over the republic’s core principles” and urges the U.S. Supreme Court to revisit its interpretation of the Act.
Once feckless in ensuring that local governments in California satisfy housing needs for all income levels, the Dept. of Housing and Community Development is gaining strength. A paper by Eric Biber and Moira O’Neill show why recent bills have buoyed the agency’s role, and how that could fuel more accountability and stronger oversight.
To help level the inequity in corporate leadership roles, California became the first state to mandate board gender quotas in 2018. In a new paper that examines “negative announcement returns” to adopting such quotas, Steven Davidoff Solomon and three co-authors point to shareholders fearing more legislation of non-economic values.