Print Edition
The federal government has a well-documented history of discrimination against women in American agriculture. And the government now has many compelling reasons—from remedying past discrimination to shoring up food security—to provide targeted support to women farmers. But the Biden Administration’s attempts to provide targeted financial support to Black farmers through the American Rescue Plan Act were halted by federal courts that view affirmative action with increasing suspicion, as evidenced by the Supreme Court’s 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA). Does the Supreme Court’s upending of decades of precedent governing race-based affirmative action in SFFA also spell the end for gender-based programs in agriculture?
What duties do Americans owe the state? Today, this question seems almost incomprehensible. Compulsions in the common interest are received coolly in our rights-obsessed culture, and the Supreme Court has never announced a framework for identifying the burdens of citizenship. This Article corrects the historical record by documenting how civic duties have developed over time. The evidence reveals that these obligations are constantly in motion; society has constructed, reshaped, and discarded them in decades-long struggles over the meaning of freedom. Put simply, the duties of citizenship are not fixed features of our constitutional order.
Most people agree that the institution of contract serves autonomy—or that it should. But how? Philosophical theories of contract link contract and autonomy by way of an appealing intermediate principle, such as the authority of the individual will, promissory morality, or conventions of agreement. However, each of these theories is focused on the mental and verbal acts surrounding contract and is thus at odds with both contract as a social practice and contract law. The theories fail to account for basic features of modern contracting such as anonymity, mass scale, and market determination of contract terms—facts to which both the common law and statutory regulation have long adjusted. This Article proposes a different approach to contract theory.
This Article employs recent philosophical advances in action theory and moral responsibility to critically examine the traditional purpose-knowledge-recklessness-negligence (PKRN) mens rea hierarchy of the Model Penal Code. It is a foundational assumption of the traditional mens rea hierarchy that the commission of intentional harm ought to be subject to greater criminal liability than actions that foreseeably result in risk of those same harms. The Article critically rethinks the standard mens rea hierarchy and show how we might amend current homicide doctrine (and the PKRN mens rea regime more generally) to allow more criminal liability for non-intentional police homicides like Derek Chauvin’s killing of George Floyd, relative to reluctant purposeful defendants.
Artificial intelligence (AI) systems depend on massive quantities of data, often gathered by “scraping”—the automated extraction of large amounts of data from the internet. A great deal of scraped data contains people’s personal information. Although scraping enables web searching, archiving of records, and meaningful scientific research, scraping for AI can also be objectionable and even harmful to individuals and society. This Article explores the fundamental tension between scraping and privacy law. With the zealous pursuit and astronomical growth of AI, we are in the midst of what we call the “great scrape.” There must now be a great reconciliation.
Although ADA protections are ensured in the federal legislative branch and in state courthouses, this pivotal disability rights statute does not cover the federal judiciary. ADA claims are consequently litigated in federal courthouses that may be inaccessible to disabled people, yet there is little scholarship on the topic. This Note aims to fill this gap by exploring the implications of the lack of accessibility in the federal judiciary. Without ADA protections, disabled people do not have recourse when faced with discrimination and inaccessible spaces. This lack of protection threatens disabled people’s access to justice, access to the workplace, and representation both on juries and within the federal judiciary.
CLR Online
The web edition of the California Law Review.
Who does our government work for? How does our government shape our society? Who gets access to the power of the state when they have a problem or need help? None other than Chief Justice John Roberts himself has perpetrated a great lie that the ability to access our federal courts is a neutral, apolitical issue. In reality, our federal courts systematically favor the rich and powerful, particularly those who push a specific set of conservative policy outcomes, even when those outcomes are contrary to what Americans vote for and support. In order to rectify this disconnect, we must rethink the laws, rules, and regulations that structure federal courts, and grow capacity at the state level to ensure our system works for everyone, not just the rich and powerful.
When and how should an individual or an institution act in response to extortion? What should an individual or an institution do to oppose tyranny, illegality, oppression, or horror, if we suppose that the consequences of opposition might not be so good or might be terrible? These questions arose in stark form in 2025 in the context of efforts by the Trump administration to punish and bring to heel law firms, individuals, universities, and others.
In his second term, President Donald Trump has launched an unprecedented assault on the nation’s largest law firms. Through a series of executive orders and highly unusual EEOC (Equal Employment Opportunity Commission) actions, the Trump regime has sought to undermine the independence of the private bar. In response, targeted firms have been forced to make a choice: to appease the administration or to fight back.
“Known formally as the President and Fellows of Harvard College, the Harvard Corporation is the oldest corporation in the Western Hemisphere.” So reads the Harvard Corporation website. But you would hardly know it was a corporation at all based on Harvard’s recent fifty-page complaint against the federal government, which attempted to commandeer the university through an April 11 letter demanding that Harvard change its governance, hiring and admissions practices, and faculty viewpoint diversity on pain of losing research funding.
What can trademark law learn from comic art? This Comic Book explores the question using Scott McCloud’s book Understanding Comics as a point of departure. McCloud provides a framework for understanding why some images are more effective icons than others. His analysis offers useful insights for trademark law. While comic artists need only follow their creative vision in balancing realism and abstraction, trademark holders are more constrained. If a mark is too abstract, it ceases to be distinct. But a mark that is too realistic loses the ability to embody the range of meanings that a trademark may represent. McCloud’s framework thus suggests a zone of effectiveness for non-word trademarks. When trademark holders select a mark that is outside the zone, trademark law should be suspicious of the choice.
Consumer financial protection law is critically important for the members of our society with the fewest resources. Violations of consumer protection laws disproportionately impact people who are struggling, and people are often taken advantage of when they are vulnerable. Focusing on recent work by the Consumer Financial Protection Bureau (CFPB), this speech by Seth Frotman, former CFPB General Counsel and Senior Advisor to the CFPB Director, examines how the CFPB has used consumer financial protection law to combat practices that take advantage of the vulnerable and discriminate against them.
Symposia
Articles accompanying CLR’s conferences. Published in the print edition.
Department of State v. Muñoz was a critically important successor to Dobbs v. Jackson Women’s Health Organization. In Muñoz, the Court continued efforts to shrink the protective force of the Due Process Clause. Even more significantly, the Court launched another attack on the equality principle undergirding cases including Loving v. Virginia. Through its rejection of substantive due process protections, the Court is intentionally weakening a broad swath of antidiscrimination protections and procedural due process rights.
The Students for Fair Admissions, Inc. v. President & Fellows of Harvard College majority opinion has been widely misunderstood as a victory for those who believe in the “colorblind Constitution.” By juxtaposing the opinion’s main rule with the exception for admitting students based on essays that discuss students’ lived experiences with race, Robinson reveals the opinion’s fundamental incoherence, as well as its furtive race-consciousness. This examination reveals the chasm between colorblind rhetoric and the inescapability of racially-forged realities.
This Essay connects Students for Fair Admissions to two earlier moments in equal protection history. The first is Japanese American internment during World War II and the Supreme Court’s creation of the strict scrutiny doctrine. The second is the affirmative action wars that occurred in the 1980s and 1990s, which resulted in the current doctrine requiring strict scrutiny even for “benign” affirmative action. In all three moments—internment, affirmative action wars, and SFFA—Asian Americans were curiously exploited.
Implicit in inquiries about Students for Fair Admissions v. Harvard’s relationship to precedent is an assumption about the affirmative action cases that preceded SFFA—namely, that Regents of the University of California v. Bakke and its progeny represented a victory for proponents of affirmative action. This Essay complicates that view. Our central claim is that Bakke contained many losses for proponents of affirmative action and that the specific nature of those losses set the stage for precisely the outcome SFFA instantiates.
Since the Supreme Court struck down race-conscious university admissions in 2023, magnet school admissions have become the next constitutional battleground for diversity in education. Harpalani illustrates how Asian Americans’ positioning intersected with litigation strategy and constitutional issues in Coalition for TJ v. Fairfax County School Board—an important recent ruling that deals with race-neutral public magnet school admissions policies. Harpalani aims to convince progressives to take anti-Asian animus more seriously, even as they support the admissions reforms that Asian American plaintiffs in several cases have challenged.
The Court’s unprecedented decision in Dobbs v. Jackson Women’s Health Organization relegated abortion regulation to a highly heterogeneous state institutional landscape. For lawyers, this institutional heterogeneity poses new questions of orientation, skill-building, and collaboration. In this Essay, Abrams examines the challenges facing lawyers in this new institutional landscape by focusing on one promising strategy for protecting abortion rights in conservative states: the initiative petition to amend a state’s constitution.
Podcast
Interviews with the authors of articles, notes, or online pieces published in CLR.
People usually think that all tax agencies do is ensure tax laws are followed. But for decades, the IRS has regularly facilitated immigration raids. These raids target employees even as the IRS investigates their employers’ potential tax violations. What can this state of affairs teach us about agency overreach? And what alternate paths could better align the IRS’s efforts with its mission? In this episode, UC Davis School of Law Professor Shayak Sarkar discusses the IRS's underappreciated role in immigration enforcement.
Traffic courts resolve over half of the cases in the U.S. legal system. These cases are easy for some defendants to handle by paying a fine, but they can have devastating effects for those with fewer means. And despite the key role these courts play in funding state judicial branches and other state and local programs, they have not been comprehensively studied in decades. What’s going on in traffic courts? And what can they teach us about the legal system more broadly? In this episode, Arizona State University Sandra Day O’Connor College of Law Professor Justin Weinstein-Tull explains his research on traffic courts.
Immigration adjudications regularly use information from the criminal legal system to justify a discretionary denial of relief or benefits, even when charges have been dismissed. This practice faces little scrutiny due to the assumption that adjudicators are merely importing facts already found by the criminal system. But what if this practice actually constitutes “hidden factfinding”? Sarah Vendzules, a Senior Staff Attorney at the Office of the Appellate Defender in New York City, uncovers this hidden factfinding and offers a framework that could rein it in.
The U.S. carceral system disproportionately harms racial minorities and people living in poverty. Penal abolitionist frameworks have helpfully reframed the conversation to foreground those harmful social consequences. But how do those consequences affect our understanding of work, and particularly work that is both criminalized and undertaken in order to survive? In this episode, Indiana University Maurer School of Law Professor Yvette Butler explains her concept of survival labor and why it should be included in our general understanding of work.
For more than a century, the United States has restricted Tribal governments’ powers over criminal law. It has diminished Tribal jurisdiction and imposed adversarial approaches on Tribal courts. But recently, some Tribal courts have begun to embrace Indigenous-based restorative justice models. UCLA School of Law Assistant Professor Lauren van Schilfgaarde discusses how these these models strengthen both Tribal courts and Tribal jurisdiction more broadly.
Each year, Child Protective Services investigates over one million families. Every investigation includes a room-by-room search of the family home, as well as the threat of the state’s coercive authority to remove children from their families. CUNY School of Law Professor Tarek Z. Ismail discusses how these investigations have evaded traditional Fourth Amendment scrutiny.
