California Law Review
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Open Access journal
ISSN (Print) 0008-1221
Published by U of California, Berkeley [4 journals]
- It Wasn’t Me—Unintended Targets of Arrest Warrants
Authors: Brandon V. Stracener
Abstract: Innocent people are being arrested multiple times on arrest warrants intended for others. By virtue of sharing a name with someone who is the legitimate target of law enforcement, these innocent people experience unfair disruptions in their lives almost any time they have contact with law enforcement. As of today, the courts afford them no relief, based in part on a series of unfortunate interpretations of the Fourth Amendment. Nothing stops law enforcement from repeatedly arresting the same person as long as the person arrested has the opportunity to see a judge after spending several days in jail. Courts throughout this country accept that these innocent people can be arrested ad infinitum, as long as they see a judge within a reasonable amount of time.This Note examines the development of jurisprudence on the particularity requirement in the Warrant Clause of the Fourth Amendment. Through a series of logical missteps, courts have whittled away at the otherwise clear Fourth Amendment avenue of relief for the unintended targets of arrest warrants. As long as the name on the warrant is the correct name for the target of the warrant, courts deem the Warrant Clause satisfied. And the officers on the scene cannot be blamed for acting in good faith when they arrest an individual whose name is identical to the name on the warrant. Thus, the only avenue left for these victims is an inadequate Fourteenth Amendment over-detention analysis.This Note asserts that the avenue for relief lies in following a correct interpretation of the Fourth Amendment’s Warrant Clause that courts have thus far ignored. Under this interpretation, victims can obtain injunctive relief through 42 U.S.C. § 1983, a statute permitting suit against persons acting under the color of state law for violations of federal constitutional or statutory rights.1 Through this cause of action, victims can enjoin the organizations that issue these warrants to update them in a manner that satisfies the Fourth Amendment’s particularity requirement. Most importantly, victims can stop worrying that every interaction with law enforcement will result in spending several days in jail for a crime they did not commit.
PubDate: Tue, 07 Mar 2017 17:39:01 PST
- A “Source” of Error: Computer Code, Criminal Defendants, and
Authors: Christian Chessman
Abstract: Evidence created by computer programs dominates modern criminal trials. From DNA to fingerprints to facial recognition evidence, criminal courts are confronting a deluge of evidence that is generated by computer programs. In a worrying trend, a growing number of courts have insulated this evidence from adversarial testing by preventing defendants from accessing the source code that governs the computer programs. This Note argues that defendants are entitled to view, test, and critique the source code of computer programs that produce evidence offered at trial by the prosecution. To do so, this Note draws on three areas of law: the Confrontation Clause, the Due Process Clause, and Daubert and its progeny. While courts and commentators have grappled with specific computer programs in specific criminal contexts, this Note represents the first attempt to justify the systematic disclosure of source code by reference to the structural features of computer programs.
PubDate: Tue, 07 Mar 2017 17:38:58 PST
- Learned Hand’s Paradox: An Essay on Custom in Negligence Law
Authors: James A. Henderson; Jr.
Abstract: In a well-known tort decision, Judge Learned Hand observes that while legal standards almost always coincide with customary industry standards, strictly speaking custom never controls. This Essay examines the implications of this apparent paradox, concluding that courts must have final say in order to prevent doctrinal feedback loops—situations in which legal doctrine influences customary behavior which, in turn, influences doctrine, which in turn influences custom, and so on. Were feedback loops allowed to develop unchecked by judicial review and intervention, they would lead to unfair and inefficient overinvestments or underinvestments in care. The Essay describes the approach courts should adopt in determining whether, in given instances, these feedback loops present a problem.
PubDate: Tue, 07 Mar 2017 17:38:54 PST
- From Stopping Black People to Killing Black People: The Fourth Amendment
Pathways to Police Violence
Authors: Devon W. Carbado
Abstract: The years 2014 to 2016 likely will go down as a significant if not watershed period in the history of U.S. race relations. Police killing of African Americans has engendered further conversations about race and policing. Yet, in most of the discussions about these tragic deaths, little attention has been paid to a significant dimension of the police violence problem: the legalization of racial profiling in Fourth Amendment law. This legalization of racial profiling is not a sideline or peripheral feature of Fourth Amendment law. It is embedded in the analytical structure of the doctrine in ways that enable police officers to force engagements with African Americans with little or no basis. The frequency of these engagements exposes African Americans not only to the violence of ongoing police surveillance, contact, and social control but also to the violence of serious bodily injury and death. Which is to say, Fourth Amendment law facilitates the space between stopping black people and killing black people. This Article demonstrates precisely how by employing a series of hypotheticals to reveal the ways in which the extraordinary violence police officers often use against African Americans can grow out of the ordinary police interactions Fourth Amendment law empowers police officers to stage.
PubDate: Tue, 07 Mar 2017 17:38:51 PST
- Wage Slave or Entrepreneur?: Contesting the Dualism of Legal Worker
Authors: V. B. Dubal
Abstract: Today, whether a worker is legally classified as an “employee” or an “independent contractor” determines whether he or she is entitled to employment and labor law protections. With the proliferation of the on-demand economy, the doctrinal definitions and legal analyses of these categories are fiercely contested. While businesses have attempted to confine the definition of employee to limit their financial and legal liabilities and risks, public interest lawyers have worked to broaden the definition, ensuring that more workers are covered and protected by the law. How did U.S. law come to divide workers into these two categories, how have the definitions evolved historically, and how do workers today make sense of them? This Article challenges the duality of worker classification in employment regulation by positioning the employee and the independent contractor in U.S. legal history and in the lives of contemporary workers. Part I situates the debate in work law scholarship. Part II uses historical and legal archives to challenge the prevailing assumptions about the employee and independent contractor classifications in employment and labor law. I argue that the existence of the dualism of worker categories is more recent than previously understood and that contemporary doctrinal tests reflect not bright line legal rules, but evolving political and cultural philosophies about work. Part III investigates the impact of these legal classifications on the ground. Through ethnographic research and analysis, I find that these categories of work have taken on social meaning for workers, often disrupting worker collectivities. The Article concludes that both the doctrinal analyses of the employee category and the lawyering methodologies used to advance the interests of workers must be more attendant to workers’ realities.
PubDate: Tue, 07 Mar 2017 17:38:48 PST
- Tailoring a Public Policy Exception to Trade Secret Protection
Authors: Peter S. Menell
Abstract: The growing importance of information resources as well as mounting threats to proprietary information in the digital age propelled federalization of trade secret protection onto the national legislative agenda during the past year. This salience provided a propitious opportunity to address a critical, overlooked failing of trade secret protection: the lack of a clear public policy exception to foster reporting of illegal activity. The same routine nondisclosure agreements that are essential to safeguarding trade secrets can be and are used to chill those in the best position to reveal illegal activity. Drawing on classic law enforcement scholarship as well as established institutions for protecting proprietary information, this Article proposes a sealed disclosure/trusted intermediary exception to trade secret protection. This approach safeguards trade secrets while promoting effective law enforcement. The Article also recommends that nondisclosure agreements prominently include notice of the law reporting safe harbor to ensure that those with knowledge of illegal conduct are aware of this important public policy limitation on nondisclosure agreements and exercise due care with trade secrets in reporting illegal activity. Based on an earlier draft of this Article, Congress adopted a whistleblower immunity provision as part of the Defend Trade Secrets Act of 2016.
PubDate: Tue, 07 Mar 2017 17:38:45 PST
- Who’s Afraid of International and Foreign Law?
Authors: Jenny S. Martinez
Abstract: In response to Justice Stephen Breyer’s 2015 Brennan Center Jorde Symposium Lecture, 104 Calif. L. Rev. 1553 (2016).Justice Stephen Breyer’s new book, The Court and the World: American Law and the New Global Realities,1 is a timely contribution to the literature on the effects of globalization on the U.S. judicial system.2 In his book, Justice Breyer goes beyond the now-familiar debate about the use of comparative and international law in interpreting the U.S. Constitution3 and examines some less glamorous but actually more important ways that the world outside our borders inevitably affects the resolution of many types of legal disputes.4 The impact of foreign and international legal systems on American judicial proceedings is not brand new, of course. Indeed, foreign and international law were fixtures of the Supreme Court’s early docket.5 But it is also true that Justice Breyer’s tenure on the Supreme Court has coincided with an era of renewed globalization. The book is very much a product of our times.
PubDate: Tue, 21 Feb 2017 17:30:56 PST
- The Supreme Court as a Filter Between International Law and American
Authors: Curtis A. Bradley
Abstract: In response to Justice Stephen Breyer’s 2015 Brennan Center Jorde Symposium Lecture, 104 Calif. L. Rev. 1553 (2016).This Essay describes and defends the Supreme Court’s role as a filter between international law and the American constitutional system. In this role, the Court ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with domestic constitutional values. This filtering role is appropriate, the Essay explains, in light of the different processes used to generate international law and domestic law and the different functions served by these bodies of law. The Essay provides examples of this filtering role in four scenarios: the intersection of treaties and individual rights; the relationship between the treaty power and American federalism; delegations of authority to international institutions; and the domestic application of customary international law.
PubDate: Tue, 21 Feb 2017 17:30:53 PST
- 2015 Jorde Symposium Capsule Summary
Authors: Editors of California Law Review
Abstract: In response to Justice Stephen Breyer’s 2015 Brennan Center Jorde Symposium Lecture, 104 Calif. L. Rev. 1553 (2016).On September 24, 2015, Justice Stephen Breyer delivered the annual Jorde Symposium lecture at the First Congregational Church in Berkeley, California. In his lecture, “The Court and the World: The Supreme Court’s New Transnational Role,” Justice Breyer spoke about the many reasons why American judges must take ever-greater account of foreign events, law, and practices. An edited transcript of his Jorde Symposium remarks immediately precedes this summary. His remarks served to introduce and explain his recent book, The Court and the World: American Law and the New Global Realities. Here, we provide a summary of the contents of Justice Breyer’s book followed by two thoughtful pieces written in response to Justice Breyer’s lecture, by Professors Curtis Bradley and Jenny Martinez.
PubDate: Tue, 21 Feb 2017 17:30:49 PST
- Justice Breyer’s Remarks at the 2015 Jorde Symposium September 24,
Authors: Justice Stephen Breyer
Abstract: Presented at the Brennan Center Jorde Symposium on September 24, 2015 (University of California, Berkeley).This book—what’s it about? Why did I write it? When I hear the words “interdependent,” “globalization,” “a shrinking world,” I think they range between clichés on the one hand and buzzwords on the other—but they aren’t quite concrete. I thought it might be helpful to write very concretely about what these words mean in terms of the life of a Supreme Court justice. What have they meant at the Court? When I look back and compare twenty years ago to today, I think we have many more cases where those words concretely make a big difference.I’ve listed four or five categories of cases and discussed them in an effort to try to focus on what problems they raise now. I can give you a few examples. One of them that is of interest to people is a traditional problem that goes back thousands of years: we have security needs. In our context, the Constitution delegates the security authority almost entirely to the President and to the Congress, not to the judges. Well, what happens when security conflicts with civil liberties, because the Constitution delegates significant power in that area to judges? What are judges supposed to do when they conflict?
PubDate: Tue, 21 Feb 2017 17:30:46 PST
- Between Towards Moderate Teacher Tenure Reform in California: An
Efficiency-Effectiveness Framework and the Legacy of Vergara
Authors: Stephen Chang
Abstract: This Note offers an efficiency-effectiveness framework for evaluating the success of school finance and teacher tenure court-ordered legislative reforms. In June 2014, Los Angeles Superior Court Judge Rolf Treu struck down California’s teacher tenure laws as unconstitutional in the landmark case Vergara v. State. While the California Court of Appeal reversed the trial court’s order and the California Supreme Court declined to review the decision, I argue that lessons from the Vergara case remain relevant to explain the complex relationship between the legislature and courts in teacher tenure and school finance reform. Political factors such as disunited political leadership and interest groups, lack of political priming, and inability to use a court-created policy window suggested that any hypothetical Vergara legislative remedy was likely to be a low-efficiency/no-effectiveness paradigm similar to the New York Campaign for Fiscal Equity, with such a remedy languishing in years of endless litigation. In contrast, a better path forward would have relied on a Williams model of high-efficiency/moderate-effectiveness to seek moderate reform and resolve the Vergara litigation through settlement. Consequently, even though the Vergara case has been resolved, the efficiency-effectiveness framework remains relevant as a method of analyzing the success of future California teacher tenure lawsuits as well as teacher tenure lawsuits in other states.
PubDate: Tue, 21 Feb 2017 17:30:44 PST
- Between Indigence, Islamophobia, and Erasure: Poor and Muslim in
“War on Terror” America
Authors: Khaled A. Beydoun
Abstract: Since the September 11th terrorist attacks (9/11), the legal literature analyzing national security, anti-terror policies, and Muslim American civil liberties has been prolific. The emergence of “counterradicalization” policing within Muslim American communities drives this scholarly interest forward. However, since 9/11, Muslim Americans have been framed as similarly situated victims within legal literature. As a result, this body of scholarship fails to closely examine vulnerable indigent and working-class spaces where public and private Islamophobia is disproportionately unleashed. This failure compounds the injuries Muslim Americans already suffer.This Essay intervenes to examine these liminal and overlooked spaces where indigence and Islamophobia collide. In turn, it highlights how the convergence of poverty, religious profiling and prosecution, and mounting counter radicalization policing disparately impact Muslim America’s most vulnerable demographic amid the still-escalating War on Terror.
PubDate: Tue, 21 Feb 2017 17:30:40 PST
- The Constitutional Law of Agenda Control
Authors: Aziz Z. Huq
Abstract: Constitutional scholarship is preoccupied with questions of how state power should be constrained. The Constitution, however, not only sets the bounds of state action, it also structures the range of policy options officials may consider in the first instance and the rules that organize how these options are transformed into legally effective choices. This Article analyzes the ensuing constitutional law of agenda control, focusing on the distribution of such powers between the three federal branches. This analysis generates two central claims. First, in order to calibrate intragovernmental relations, the Framers incorporated an array of heterogeneous agenda-control instruments across the three branches of government. These rules make up a hitherto underappreciated constitutional law of agenda control. Second, political actors have ignored or even circumvented a surprising number of these constitutional agenda- control rules. They instead have tended to negotiate alternate distributions of agenda-control power at odds with the original constitutional design. While the ensuing transformation of the constitutional processes for governance has ambiguous distributive consequences, the historical transformation of new law control is, on balance, a desirable development.
PubDate: Tue, 21 Feb 2017 17:30:37 PST
- Identity Entrepreneurs
Authors: Nancy Leong
Abstract: In my previous article, Racial Capitalism, I examined the ways in which white individuals and predominantly white institutions derive value from nonwhite racial identity. This process of deriving value from identity results from intense social and legal preoccupation with diversity. And it results in the commodification of nonwhite racial identity, with negative implications for both individuals and society.This Article builds on Racial Capitalism in three ways. First, as a foundation, it expands the concept of racial capitalism to identity categories more generally, explaining that individual in-group members and predominantly in-group institutions—usually individuals or institutions that are white, male, straight, wealthy, and so on—can and do derive value from out-group identities.Second, the Article turns from the overarching system of identity capitalism to the myriad ways that individual out-group members actively participate in that system. In particular, I examine how out- group members leverage their out-group status to derive social and economic value for themselves. I call such out-group participants identity entrepreneurs. Identity entrepreneurship is neither inherently good nor inherently bad. Rather, it is a complicated phenomenon with both positive and negative consequences.Finally, the Article considers the appropriate response to identity entrepreneurship in a number of legal contexts. As a general rule, judges, legislators, and other regulators should design laws and policies to maximize both individual agency and access to information for out-group members. Such reforms would protect individual choice while making clear the consequences of identity entrepreneurship for both individual identity entrepreneurs and for the out-group as a whole. A range of legal doctrines interact with and influence identity entrepreneurship, including employment discrimination under Title VII, rights of privacy and publicity, and copyright law. Modifying these doctrines to take account of identity entrepreneurship will promote progress toward an egalitarian society in which in-group and out-group identities are valued equally.
PubDate: Tue, 21 Feb 2017 17:30:34 PST
- A Velvet Hammer: The Criminalization of Motherhood and the New Maternalism
Authors: Eliza Duggan
Abstract: In 2014, Tennessee became the first state to criminalize the use of narcotics during pregnancy. While women have been prosecuted for the outcomes of their pregnancies and for the use of drugs during their pregnancies in the past decades, Tennessee is the first state to explicitly authorize prosecutors to bring criminal charges against pregnant women who use drugs. This Note suggests that this new maternal crime is reflective of a social and political paradigm called “maternalism,” which reinforces the idea that women are meant to be mothers and to perform motherhood in a particular fashion. This concept has developed from the “old maternalism” of the nineteenth and early twentieth centuries to the “new maternalism” of the late twentieth and twenty-first centuries. The new maternalism is developing in a modern world, finding its voice through both liberal, mother-centric organizations like MomsRising and conservative individuals like Sarah Palin and her “mama grizzlies.” While new maternalism is developing in a modern context, it still upholds motherhood as the prime directive of women. This Note first tracks the history of policing pregnant women, with an eye for the effects this history has had on women of color and poor women in particular. Next, it describes the progression of maternalism and how it has shaped American politics and culture. Finally, it proposes that the new law in Tennessee criminalizing the use of drugs during pregnancy is reflective of new maternalism. Through the criminalization and policing of pregnant women’s behavior, women’s reproductive freedoms become increasingly constricted. By criminalizing the behavior of some pregnant women, this law helps to create a vision of a “bad mother,” whose punishment acts as a foil to the “good mother” that the new maternalism tries to reinforce.
PubDate: Tue, 07 Feb 2017 15:46:00 PST
- A “Hot” and “Cool” First Amendment: Analyzing Speech Effects in a
Shifting Media Environment
Authors: Sean Howell
Abstract: The First Amendment’s usually strict protection of the right to free speech sometimes appears to give way when listeners would have difficulty evaluating a given communication. But it is far from clear when or why courts relax the dictates of the Speech and Press Clauses in light of the effects of speech on listeners. Courts’ failure to develop a clear method for assessing speech effects under the First Amendment is particularly troublesome in light of the novel speech- related issues that have come with rapid advances in modern communications technologies. Arriving at an approach for evaluating the impact of speech on listeners would clarify First Amendment jurisprudence, helping to resolve questions about how the Speech and Press Clauses should apply in a hyperconnected, hypercommunicative, high-technology world. This Note turns to communications theory, and in particular to the work of Marshall McLuhan, to develop such an approach.
PubDate: Tue, 07 Feb 2017 15:45:57 PST
- Obergefell v. Hodges and Nonmarriage Inequality
Authors: Melissa Murray
Abstract: On June 26, 2015, the Supreme Court announced its much- anticipated decision in Obergefell v. Hodges, opening the door to nationwide recognition of marriage rights for same-sex couples. The public response to the Court’s decision was immediate and overwhelmingly positive. There is certainly much to celebrate about the Obergefell decision, but there is also cause for serious concern— even alarm. Although the Obergefell decision is a victory for same- sex couples that wish to marry, it is likely to have negative repercussions for those—gay or straight—who, by choice or by circumstance, live their lives outside of marriage.Obergefell builds the case for equal access to marriage on the premise that marriage is the most profound, dignified, and fundamental institution that individuals may enter. By comparison, alternatives to marriage, which I collectively term “nonmarriage,” are less profound, less dignified, and less valuable. On this account, the rationale for marriage equality rests—perhaps ironically—on the fundamental inequality of other relationships and kinship forms.Some may dismiss Obergefell’s veneration of marriage as nothing more than rhetorical flourish. But the decision has concrete implications for life outside of marriage. Over the last fifty years, in a series of cases that I term the “jurisprudence of nonmarriage,” the Supreme Court has offered tentative constitutional protections for nonmarriage and nonmarital families. By further entrenching marriage’s priority, Obergefell’s pro-marriage impulse not only demeans and challenges the status of nonmarriage, it undermines the values and principles that underlie the jurisprudence of nonmarriage. Thus, even as Obergefell expands the right to marry, it may also diminish constitutional protection for life outside of marriage.
PubDate: Tue, 07 Feb 2017 15:45:54 PST
- Criminal Behavior as an Expression of Identity and a Form of Resistance:
The Sociolegal Significance of the Hawaiian Cockfight
Authors: Kathryne M. Young
Abstract: This article analyzes the sociolegal significance of a highly localized form of illegal behavior: the Hawaiian cockfight. Drawing on ethnographic data gathered at illegal cockfights in Hawaii, as well as in-depth confidential interviews of cockfighters, this article depicts the activity as it occurs on the ground, from the fighters’ perspective. The men who engage in cockfighting derive at least two meanings from the illegal activity. First, cockfighting expresses a man’s central identity as a Hawaii “local,” embodying a positive cultural assertion that honors cockfighters’ family histories and establishes a man’s value as an intelligent, trustworthy member of his community. Second, in the throes of legal, economic, and demographic changes to Hawaii, cockfighting has taken on an important meaning as a “resistance” activity that stands in opposition to these developments, particularly because of the pervasive sense of futility that locals tend to experience when they interact with the legal system. These two purposes, identity and resistance, are opposite sides of the same coin. In asserting local identity, cockfighters are able to communicate who they are; in resisting changes, they are able to communicate who they are not. This article also argues for the importance of considering local context in designing law enforcement measures by demonstrating the importance of cultural legitimacy to on-the-ground policing practices.
PubDate: Tue, 07 Feb 2017 15:45:51 PST
- Remaking Energy: The Critical Role of Energy Consumption Data
Authors: Alexandra B. Klass et al.
Abstract: This Article explores the public policy benefits associated with increased access to energy consumption data as well as the legal and institutional barriers that currently prevent such access. As state and local governments as well as electricity users attempt to improve the efficiency of their buildings, reduce greenhouse gas emissions, and realize the promises of improved demand side management of energy resources, the need for electricity and other energy-related data becomes even more pressing. But the current law that balances making energy consumption data available against any privacy or confidentiality interests in the data is underdeveloped. Thus, this Article draws on the more sophisticated legal frameworks governing health care, education, and environmental emissions data that balance the public policy needs for data evaluation with countervailing interests. A review of the law in these fields shows that the privacy and confidentiality interests in energy consumption data may be overstated and, in any event, can be adequately addressed in most instances through aggregating the data, using historic rather than current data, or through contracts and other agreements to ensure security where access to individualized data is needed.
PubDate: Tue, 07 Feb 2017 15:45:48 PST
- Furthering the Fiduciary Metaphor: The Duty of Providers to the Payers of
Authors: Isaac D. Buck
Abstract: Five years and two near-death experiences later, the Patient Protection and Affordable Care Act of 2010 (ACA) has restructured the delivery of American health care. It has provided coverage to millions of Americans who previously lacked it, outlawed discrimination in the insurance marketplace, and armed patients with consumer-based tools to streamline their care. The ACA has had a positive impact throughout the country. But it can only go so far.Separate from providing access, the most daunting challenge facing American health care, and Medicare in particular, is how to control expenditures and utilization in an era of unprecedented enrollment growth. Past efforts to control expenditure and utilization have failed, and starkly conflict with the dominant paradigm in American health care that sanctifies the autonomy and nearly unlimited discretion of the American health care provider. This paradigm often views attempts that seek cost-effectiveness as heavy- handed government intervention. But as Medicare’s enrollment is likely to swell from 52 million today to nearly 90 million by 2040, the costs and utilization problem will not abate with age. While the ACA may help reduce unnecessary and unwanted care and expand coverage, it cannot fully address the overtreatment problem due to a confluence of factors—namely, the often-acute emergent situations and incomparable pain patients encounter, the imperfect agency relationship between patients and payers, and the intractable information asymmetry that exists within the enterprise.This challenge begs for creative legal and policy-based solutions that seek to maintain provider autonomy and patients’ freedom of choice, but also construct reasonable incentives and limitations to prod providers and Medicare beneficiaries into choosing more cost-effective treatments. It is made all the more difficult by Medicare’s reimbursement structure, a regime that still largely rewards and incentivizes excess. Recognizing that tension, this piece nods to previous scholarship that has suggested importing fiduciary principles into the provider-patient relationship, but builds on it by arguing for the inculcation of fiduciary principles into the largely unrecognized payer-provider relationship. Requiring the provider to owe a duty of loyalty to the payers in the Medicare enterprise—American taxpayers—would introduce pressures on providers to limit excessive and expensive health care by opening the door for Medicare to seek judicial remedies in cases of wrongdoing. This new duty would further nuance the provider’s loyalties and also reflect other professionals’ multilayered duties of loyalty. Finally, this move would not increase regulations governing providers, nor rob them of their dear autonomy, but would limit unreasonable health care costs and utilization where possible—something that, heretofore, Medicare has failed to do.
PubDate: Tue, 07 Feb 2017 15:45:45 PST