Print Edition
The two primary goals of consumer class actions are to provide relief to those who have been harmed and to deter similar behavior in the future. Yet, in many class actions, claims rates are so low that only a small fraction of class members actually receives their share of a settlement, leaving remaining unclaimed funds subject to judicial discretion. This allows for reversion to the defendant, pro-rata distribution, or escheat by the state. While distribution to charities via the cy pres doctrine is often deemed the “next best” use of these funds, inadequate oversight of recipient charities results in distributions that may not effectively address the harms caused by the defendant’s conduct.
Pharmaceutical drugs are pillars of modern medicine and enshrined in the human right to health. Upholding the right to access such essential medicines requires systems that not only incentivize drug development, but that also audit new drugs for adequate safety and efficacy. Amidst a growing antibiotic resistance crisis, current approaches to both patent protection and clinical trial design are failing to adequately support new antibiotic development while upholding the human right to health.
The Supreme Court is well-known to favor granting review in cases implicating circuit splits. When, for example, two federal appeals courts disagree over the meaning of a federal statute, the Supreme Court is likely to step in and resolve the confusion to ensure uniformity in federal law.
But the Court is also increasingly likely to let such splits languish for longer. It is taking fewer and fewer cases, year after year. And the Court dedicates much of the limited space on its docket to cases that do not involve circuit splits—cases that, say, present an opportunity to overrule precedent or that implicate patent matters.
Mallory v. Norfolk Southern Railway Co., decided in June 2023, held that consent remains a method of establishing personal jurisdiction independent of the “minimum contacts” test established by International Shoe Co. v. Washington. To many, the decision resolved ambiguity in personal jurisdiction doctrine and represented a straightforward way of establishing personal jurisdiction. But Mallory failed to consider the many complexities underlying consent.
For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help. In 2018, this changed. A series of Ninth Circuit Court of Appeals decisions gave homeless individuals a right to occupy public spaces with some of their belongings. The surprising source of the right was the Eighth Amendment. The courts held that for people with no way of complying with laws banning public sleeping, punishing them for doing so constituted cruel and unusual punishment.
The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect’s will. Even if the law adequately safeguards those interests, something is missing: reliability.
CLR Online
The web edition of the California Law Review.
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.
Administrative datasets on immigration enforcement—the government’s own records of immigration arrests, detentions, and deportations—are increasingly central to immigration journalism, research, and litigation. Access to individual-level data (i.e. data including a row for each person or action) from Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and the Executive Office for Immigration Review (EOIR), has made this trend possible.
Gun violence is the leading cause of death for children in this country. This stunning and horrifying fact angers us. The United States also has the highest number of school shootings of any developed nation. This is particularly upsetting since school is supposed to be a safe haven for children: a place to learn, play, and discover who they are and who they want to be. Our hearts ache for the parents who have lost their children or whose children have been traumatized by a shooting. We live in fear that our children’s school will be next.
The Reconstruction Congress envisioned a comprehensive set of rights and structural protections in the Fourteenth Amendment to establish and preserve a multiracial democracy. The Fourteenth Amendment’s third section, the Insurrection Clause, may seldom have been enforced in recent memory, but it remains a vital part of the Amendment’s framework. In Trump v. Anderson, the Supreme Court was given a choice to either enforce the Insurrection Clause’s protection of Black political participation or condone insurrection. In keeping with its long tradition of anti-Black jurisprudence, the Court chose the latter.
A few years ago, I published, in this journal, an article on the thirtieth birthday of the Americans with Disability Act. That article, The Americans with Disabilities Act at Thirty, 11 CALIF. L. REV. ONLINE 308 (2020), has seen a great deal of success over the past three years. Inspired by that essay, this article celebrates the fiftieth anniversary of another very important disability rights law—the forerunner of the Americans with Disabilities Act—the Rehabilitation Act of 1973 (RA).
In July 2022, transitional U.S. Department of Agriculture (USDA) requirements for milk in school meals went into effect. These requirements further ensconce milk as a nutritional cornerstone of the USDA’s school breakfast and lunch programs, with milk serving as a key source of calcium, vitamin D, potassium, and calories for children.
Symposia
Articles accompanying CLR’s conferences. Published in the print edition.
In the summer of 1854, the Massachusetts Anti-Slavery Society sent out word of a large gathering to be held at Harmony Grove in Framingham—sixteen miles from Boston—on the Fourth of July. For fifty cents, picnickers were offered “Special Trains” to and from the grounds.
In his essay Frederick Douglass and the Two Constitutions, Professor David Blight explores the constitutional thought of the nineteenth century’s great human rights advocate, statesman, and orator, Frederick Douglass. How should we understand, he asks, Douglass’s arrival at a natural rights interpretation of the 1787 Constitution?
Even in a century notable for oratory, Frederick Douglass’s capacities as an orator were astonishing. He was a master of words, whether spoken or written.
Thank you for inviting me to participate in this symposium. I want to thank David Blight, in particular, for this rich and provocative Essay. It was fascinating for me to learn that he has come over to the position of my friends James Oakes and Sean Wilentz, with whom I have argued about the concept of the antislavery American Constitution.
Born a slave on the eastern shore of Maryland and spending the first twenty years of his life in bondage, Frederick Douglass possessed no conventional education. He did not spend a single day of his life in schools of any kind. His “education” came from people around him, from books, from journalism, from wide reading, and finally, from his personal experience and relationships.
In his Jorde lecture, Professor Steven Levitsky offers an important account of the nation at a crossroads. Down one path is a thriving multiracial democracy; down the other lies democracy’s demise. To avoid the latter path, Levitsky presses the need for major institutional reform, including constitutional amendments to change the structure of the United States…
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.
