Volume 37 Number 4 -- Spring 2004

TABLE OF CONTENTS

SYMPOSIUM

SOCIAL JUSTICE IN THE 21ST CENTURY

Drum Majors for Justice--Leading the March Toward Social Justice
by Gary Williams

Professor Gary Williams reminds us that thirty-four years after Dr. Martin Luther King’s assassination, the need for drum majors for social justice is extant. The problems that Dr. King identified in 1968 -- hunger, poverty, and incarceration -- persist, and threaten to become even more daunting today. In light of these problems, the editors asked the participants in this symposium two questions. First, what are some of the pressing social justice issues facing America today? Second, if lawyers are to become drum majors for social justice, what role should law schools and law professors play in addressing these issues? Professor Williams reviews each of the participants’ contributions, and comments that such contributions are essential if law students, law professors, and practicing lawyers are to master the strategies for effective social change, and acquire the passion, courage, and stamina for a lifelong pursuit of social justice.

Gangs, Schools and Stereotypes
by Linda S. Beres and Thomas D. Griffith

Professors Linda Beres and Thomas Griffith debunk the commonly accepted assertion that youth gangs present a growing threat to schools. Using data from the United States Department of Justice, the Los Angeles and the Chicago Police Departments, and other law enforcement sources, Beres and Griffith demonstrate that by virtually every objective measure, the gang problem in schools has been greatly exaggerated and that the presence of gangs in schools actually declined between 1995 and 1999. Beres and Griffith argue that gang policies must be based on accurate information. Otherwise, discriminatory and restrictive measures may be adopted on campuses, and many minority youth may be wrongly labeled as gang members.

A New Perspective on the "War on Drugs": Comparing the Consequences of Sentencing Policies in the United States and England
by MaryBeth Lipp

MaryBeth Lipp compares the drug sentencing laws in the United States, which employ rigid mandatory minimum sentences, with those of England, which give trial judges discretion to set sentences up to a statutory ceiling, taking into account the severity of the offense and the character of the defendant. Lipp finds that both systems have fueled increasing prison populations but that the United States suffers from a markedly higher rate of incarceration because its sentencing laws privilege violent offenses, as compared to nonviolent drug offenses, with shorter prison terms. Lipp’s comparison uncovers another unsettling consequence: Each nation disproportionately imprisons people of color for drug-related offenses. She concludes that neither system holds a cure for the social injustices occasioned by the war on drugs and argues that U.S. legislators should revisit the negative consequences that mandatory minimum sentences have yielded.

Toward Providing A Welcoming Home for All: Enacting A New Approach to Address the Longstanding Problems Lesbian, Gay, Bisexual and Transgender Youth Face in the Foster Care System

by James W. Gilliam, Jr.

James Gilliam argues that the foster care system is woefully unprepared to deal with adolescents who are lesbian, gay, bisexual, or transgender. He proposes that states enact laws, and foster care agencies adopt policies, giving preference to placing gay, lesbian, bisexual, or transgender youth in homes with gay, lesbian, bisexual, or transgender foster parents. He argues that courts and foster care agencies, at minimum, should be required to place such youth with families that have affirmatively expressed or demonstrated their willingness and suitability to accept children with those identities because this holds the best promise for allowing gay, lesbian, bisexual, and transgender adolescents to develop into healthy, happy adults.

In the Meantime: State Protection of Disability Civil Rights
by Sande L. Buhai

Professor Sande Buhai demonstrates that today the United States Supreme Court has swung the pendulum very far towards constricting civil rights protections in general. Buhai documents how this swing has characterized the High Court’s interpretation of the Americans with Disabilities Act (ADA), which was intended to protect people with disabilities from employment discrimination. Buhai urges advocates for the disabled to look to the laws of the states, first to provide immediate and meaningful protection from discrimination, and second as the fora where they can continue to develop effective remedies for the workplace problems faced by the disabled. She argues that the efforts of the states to address workplace discrimination hold the promise of developing a solid national commitment to protecting the civil rights of persons with disabilities.

“Chasing the Wind”:  Pursuing Social Justice, Overcoming Legal Mis-education, and Engaging in Professional Re-socialization
by John O. Calmore

Professor John Calmore observes that the current model of law school education insists on teaching students that the law is reason based, abstract, and value-free. In this model, law professors strive to teach students how to “think like lawyers” -- to become amoral technicians whose personal moral values are baggage or distractions that complicate the task of representing clients. Calmore argues that for law schools to train law students to pursue social justice most effectively, they must encourage students to broaden their understanding of how the law works and how it can be used to affect positive social change. Professor Calmore uses his experience teaching his Social Justice Lawyering class to suggest that law school education can do much more to sensitize law students to the needs of people who are marginalized, subordinated, and underrepresented.

Fides Quaerens Iustitiam Socialem:  A Jesuit Law School Perspective
by Robert W. Scholla, S.J.

Father Robert Scholla explains that Jesuit theology strives for more active participation in the struggles of humanity and deeper exploration into the possibilities for social change. That challenge invites law students to seek fresh insights into self, society, and the world, in hopes of sparking within them a desire for personal and societal improvement. Father Scholla notes that Jesuit education strives to move students beyond self-concern and self-interest, and to form the habit of acting for others. It is in this way that students are encouraged to convert to the love of God, and through that conversion, to labor for the demands of justice.

A Pro Bono Requirement for Faculty Members
by Erwin Chemerinsky

Professor Erwin Chemerinsky argues that law schools, and the entities that regulate them, ought to establish mandatory pro bono service requirements for law school faculty. Chemerinsky demonstrates that pro bono service enhances a law professor’s ability to teach the law, and creates opportunities to involve law students in the practice of the law in the public interest. Chemerinsky points out that encouraging, if not compelling, law professors to gain practical experience will improve their teaching by showing them how theory intersects with practice.

NOTES & COMMENTS

Rematch in the Ring:  Giving Death Row Inmates Another Chance to Challenge their Sentences in Summerlin v. Stewart*
by Sara N. Williams

Whether new constitutional rules apply in post-conviction proceedings requires consideration of the Supreme Court’s retroactivity doctrine, as set forth in Teague v. Lane. Last year, in Summerlin v. Stewart, the Ninth Circuit concluded that Ring v. Arizona established a new constitutional rule of criminal law, and applied that rule retroactively to vacate an unconstitutionally imposed death sentence. In this Comment, Sara Williams examines the retroactivity doctrine, and the Ninth Circuit’s analysis of Ring. She demonstrates that neither statutory nor case precedent preclude applying Ring retroactively, and concludes that the Ninth Circuit correctly decided Summerlin because to deny convicted criminals the opportunity to challenge their unconstitutionally imposed death sentences violates public policy.

Fine Tuning California's Approach to Injured Participants in Active Sports
by Glenn Anaiscourt

Glenn Anaiscourt argues that over the course of several decades, the California Supreme Court has been unconsciously seeking a “middle ground” with respect to the standard to which defendant sports participants should be held. He concludes that over the long term, the court is likely to settle upon a standard for imposing liability that lies somewhere between negligence and recklessness. Anaiscourt reasons that the court’s most recent decision in this area contains the seeds of factors that should, in certain cases, permit a court to lower the shield of protection defendant sports participants enjoy under Knight v. Jewett, and make them liable for plaintiff sports participants’ injuries under a theory of ordinary negligence.

The Prisoner's Dilemma:  Reassessment of Borrero v. Aljets and the Indefinite Detention of Inadmissible Aliens
by John W. Lam

In Borrero v. Aljets, the Eighth Circuit Court of Appeals authorized the indefinite detention of aliens found within United States borders. John Lam argues that the holding of Borrero leaves inadmissible aliens vulnerable to the whims of the political process, deters future aliens from complying with U.S. immigration laws, puts undue strain on government resources, and reflects poorly on the United States within the international community. Lam reasons, moreover, that unless courts extend the six-month reasonable detention period set forth by the United States Supreme Court in Zadvydas v. Davis with respect to removable aliens, inadmissible aliens imprisoned in the United States will be subject to indefinite detention regardless of whether they have paid their debts to society.

In-Court Racial Voice Identifications: They Don't All Sound the Same
by John K. Son

In Clifford v. Chandler, the Sixth Circuit affirmed a defendant’s drug trafficking conviction and upheld the admissibility of a witness’ racial voice identification of the defendant. Amidst conflicting accounts of the drug dealer’s identity, the court admitted testimony that the drug dealer sounded like a Black male. This Comment argues that the court’s reliance on factually distinguishable cases admitting similar testimony essentially creates a bright-line rule of admissibility, and that a proper case-by-case balancing inquiry would have excluded the testimony because its probative value was substantially outweighed by the danger of undue prejudice.

Military Discrimination on the Basis of Sexual Orientation: "Don't Ask, Don't Tell" and the Solomon Amendment
by Lindsay Gayle Stevenson

This Note evaluates the constitutionality of the Solomon Amendment in light of the U.S. military’s discriminatory policy against homosexuals, embodied in the notion of “Don’t Ask, Don’t Tell.” The author concludes that the Solomon Amendment creates an unconstitutional condition because it forces universities to choose between First Amendment rights and federal funding. The Solomon Amendment requires a university to permit the U.S. military to recruit on-campus even if “Don’t Ask, Don’t Tell” directly conflicts with its nondiscrimination policy. Failure to comply risks the loss of hundreds of millions of dollars. The Solomon Amendment forces a university to choose between federal funding and its right as an expressive association to convey a message of strict nondiscrimination, thereby placing an unconstitutional condition upon the receipt of federal funds.

A Sympathetic Vehicle: Michigan v. Katt and Setting Dangerous Precedent
by Ann K. Triplett

In Michigan v. Katt, the Supreme Court of Michigan held that the residual exception of the Michigan Rules of Evidence could be used to admit statements that were similar to, but not admissible under the categorical hearsay exceptions. This allows admission of evidence that fails to conform to any of the categorical rules and thus could compromise a defendant’s right to an equitable trial. This Comment argues that interpreting the residual exception broadly sets dangerous precedent and considers the implications of such a decision.

*Recipient of the 2003-04 Loyola of Los Angeles Law Review Best Student Article Award.