Southern California Law Review

Note | Criminal Law | Vol. 91, No. 5
An Impossible Standard: The California Parole Board Process for Inmates with Cognitive Impairments
by​ Amber Heron

This Note argues that reform must come from re-envisioning the manner in which the parole process is administered and by applying a truly individualized approach. To be clear, the legal standard of current dangerousness is not at issue; it is the process by which the parole board determines a given inmate’s current danger that needs reform. Although many have evaluated the intersection between the DD population and the criminal justice system—including, for example, the often-unfair treatment and lack of opportunities at parole hearings for DD inmates—few have studied inmates that fall into a “grey area.” That is, individuals who do not fall within the DD classification, but who cannot successfully meet the requirements of parole without a more personalized assessment.

Article | Constitutional Law | Vol. 89, No. 5
The Harm Principle and Free Speech
by​ Rebecca L. Brown

The harm principle allows government to limit liberties as necessary to prevent harm. Does the freedom of speech present an exception to the harm principle? Most American scholars say yes. It is common practice to proclaim proudly that the U.S. Constitution protects speech even when it causes harm. But two tenets of the author of the harm principle himself suggest that, today, this answer may be too glib. For John Stuart Mill, the enhanced protection of speech is only a means to protect thought, and moreover, opinions lose their immunity if they cross over from thought into action. Together, these two points invite us to consider the possibility that the special protection we have come to afford, even to a newly broadened range of speech that goes well beyond thought, may be misplaced. There are cases, I will argue, in which we should be slow to assume that society is necessarily without power to protect itself from harm that expression may cause.

Postscript | Environmental Law | Vol. 93
The Climate Crisis Is a Human Security, Not a National Security, Issue
by Maryam Jamshidi

This Article articulates the downsides to treating climate change as a national security issue and demonstrates how the U.N.-mandated concept of “human security” provides a more effective framework. Human security realizes the benefits of securitization while lessening its costs. It does so by focusing on people, rather than the state, and emphasizing sustainable development policies necessary to mitigate, rather than just acclimate to, climate change. While explored here in detail, these arguments are part of a larger, ongoing project examining how the human security paradigm can generate more effective legal solutions than a national security framework for global challenges, like climate change.

Article | Tax Law | Vol. 91, No. 2
Stategraft
by Bernadette Atuahene & Timothy R. Hodge

This Article proceeds in five parts. In Part I, we examine the legal framework for assessments in Michigan. We then review the literature and discuss our methodology in Part II. In Part III, we analyze the data. Using assessment and sales data from 2009–2015 for the entire City of Detroit, we provide a dynamic view of how assessment inequity has changed during the life cycle of the housing crisis and the mayor-led, across-the-board cuts in property tax assessments, which occurred in 2014 and 2015. We find strong evidence of unconstitutional assessments across all the years studied. But assessments for lower-valued homes are substantially higher than 50 percent of their market value, while assessments for higher-valued homes are closer to this state constitutional standard. Although we offer some explanatory hypotheses in Part IV, we leave it to future research to determine the economic and political forces that brought about this pervasive unconstitutionality and why it has persisted for so long. In the short term, we recommend that Detroit place a moratorium on tax foreclosures for homes that are owner-occupied until it can ensure that it is in compliance with the Michigan Constitution. The City of Detroit must also ensure that property taxes owed by tax-delinquent homeowners are accurate. Finally, in Part V, based on the Detroit case, we develop a new concept called “stategraft.” More importantly, we demonstrate how this concept applies beyond Detroit.

Article | Arbitration | Vol. 91, No. 6
Why the “Demolition Derby” That Seeks to Destroy Investor-State Arbitration?
by Judge Charles N. Brower & Jawad Ahmad

For nearly six decades, States have entered into approximately 3,000 bilateral investment promotion and protection treaties (“BITs”) and some multilateral treaties (“MITs”), which possess the same dual purposes as the North American Free Trade Agreement (“NAFTA”) and the Energy Charter Treaty (“ECT”). They have been signed, ratified, and entered into force for mutual benefit: investment in the States party to the BIT or MIT is mutually encouraged, in good part by each State party guaranteeing the other State party’s investors an acceptable level of legal protection, usually consisting of “fair and equitable treatment” (“FET”), “full protection and security” (“FPS”), specific rules governing compensation for expropriation, and, via a “most-favored-nation clause” (“MFN”), the same overall level of legal protection as is accorded to nationals of other States with whom the respondent State party to the BIT or MIT has similar treaties in force.