Print Edition
Articles, notes, and symposia pieces published in CLR’s print volumes.
Efforts to ratify the Equal Rights Amendment have resurged, and for the first time in nearly forty years, three new states have ratified the ERA. But there are several reasons to reconsider these efforts. Most importantly, the ERA’s substance is insufficient to address ongoing inequities. This Article argues that advocates should instead focus efforts on writing a new amendment constitutionalizing equality aimed at rectifying the constitutional Founding Era’s treatment of people of color, women, and other subordinated groups.
Data breach—the improper exposure of consumers’ personal information held in corporate databases—costs consumers and businesses hundreds of billions of dollars each year. Despite scrutiny, the scale and severity of breaches has rapidly increased. This Note lays out a policy framework for overcoming the intense industry opposition and political paralysis that has consistently derailed data breach reform efforts over the past decade.
The Pregnant Workers Fairness Act entitles many workers to “reasonable accommodations” for pregnancy-related medical conditions—so long as they do not impose an “undue hardship” on their employer. This Article addresses how the chaotic Americans with Disabilities Act doctrine will impact the PWFA’s implementation. The Article proposes a framework for litigants and courts assessing claims under the PWFA.
Scholars’ framing of Section 1983 as a “constitutional tort” and their focus on the qualified immunity doctrine miss the fundamental issue of Section 1983's transformation into a fault-based tort. This Article demonstrates how the judicial rewriting of Section 1983 has undermined its effectiveness and diverged from the Reconstruction Congress’ intent. The Article argues that Section 1983 should be interpreted as a strict liability statutory tort.
Past-due child support debt cannot be forgiven or discharged in bankruptcy. This policy is grounded in the assumption that all child support debt goes to a parent taking care of a child. However, billions of dollars of unpaid child support debt are instead owed to the government. Welfare debt often leads to a cycle of incarceration and criminal fines. This Article argues that for the bankruptcy system to uphold its normative principle of forgiving burdensome debt for the most economically vulnerable individuals, welfare debt must be forgiven.
“Suicide by cop” refers to encounters in which civilians intentionally provoke a lethal response from law enforcement. Police and their advocates have developed suicide by cop into junk science that serves as a broad defense against liability. This Article explores the origins and use of suicide by cop, and argues that police should be required to exercise a higher duty of care to protect people from excessive use of force.
CLR Online
The web edition of the California Law Review.
American democracy is under profound stress. This stress was caused by the legal erosion of hard-won voting rights protections. Supreme Court decisions have slowly chipped away at the Voting Rights Act’s safeguards, emboldening a wave of restrictive voting policies under the guise of promoting election integrity. These measures—voter ID laws, purges of voter rolls, closure of polling places—are often defended as neutral bureaucratic management or lawful audits of the voter rolls to eliminate non-citizen registration. But in practice, they fall hardest on marginalized communities. The political playing field has been becoming increasingly skewed, and public faith in the democratic process has corroded with time. The Constitution’s broad promise of equal voting access and fair political representation has thinned, and now reveals an unsettling paradox: At the very moment when electoral participation should be most protected amid democratic backsliding, it is increasingly precarious.
American states continue to actively regulate artificialintelligence (“AI”) despite the Trump administration’s efforts to stop them. Idaho and Utah have recently enacted bills that declare that AI is not a legal person. The same states that have enacted anti-AI personhood laws have also adopted laws declaring that embryos are people. Some argue that embryos should be granted legal personhood because they have potential to become people. By the same logic, AI is also a legal person because, as it evolves, some predict that it will share characteristics with humans. How do state legislative representatives justify granting embryos legal personhood, but denying AI the same?
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.
Symposia
Articles accompanying CLR’s conferences. Published in the print edition.
The concern raised by David Strauss’s Essay might be addressed by positing an alternative, broader conception of judicial review than the one he proposes, which is inspired by the influential footnote in the Carolene Products case. My alternative view on the scope and nature of judicial review does not grow out of experience with American Constitutional history (which I am no expert on), but rather from a philosophical perspective grounded in liberal and democratic theory and from a comparative constitutional experience drawn from the European and Israeli contexts. I will present my position through a defense of two distinctions that seem essential to me.
Professor David Strauss attributes the U.S. Supreme Court’s reactionary jurisprudence to a breakdown of elite consensus. He observes that lawyers and judges disagree about the proper “victims” of our political process: Are they Black, Brown, and LGBTQ+ people or, instead, Whites, Christians, and gun owners? Under such elite “polarization,” Strauss worries the jurisprudential approach that emerged from Carolene Products allows for judicial intervention on behalf of groups loaded with political power. Even then, he insists on the classic liberal defense of the courts: that courts serve as an important if imperfect check against the majoritarian domination of minorities.
In Dobbs v. Jackson Women’s Health Organization and Obergefell v. Hodges, the Justices who attack substantive due process law equate it with Lochner. Today, crying “Lochner” has so much force that it is often unclear what the objection itself entails. “Lochner” warns federal judges to defer to a legislature’s judgments in enacting ordinary social and economic legislation. But the modern substantive due process cases do not concern such legislation. In modern substantive due process cases, judges invoke Lochner to express a far-reaching objection: to warn judges against protecting unenumerated rights and second-guessing the decisions of democratic bodies.
Among law students, lawyers, jurists, and legal academics, the reasoning contained in Supreme Court opinions forms the indispensable object of examination. The centrality of those opinions is instilled from the very first moments of law school, as professors direct their students to scrutinize this key paragraph, that critical sentence, even the odd momentous footnote. The rationales undergirding various Supreme Court opinions receive not mere study, but valorization, worship, and occasionally even ridicule.
Once upon a time, not that long ago, we had a pretty good explanation for why judicial review exists. The premise is that, for the most part, important decisions in a nation like ours should be made by politically accountable officials, not by courts. Unavoidably, though, there will be defects in the democratic political process. The role of the courts is to correct those defects, to the extent they can. One such defect is that some groups may not have their fair share of political power. If that is true, then the courts should intervene to protect that group.
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.
Podcast
Interviews with the authors of articles, notes, or online pieces published in CLR.
In 2023, the Supreme Court decided Mallory v. Norfolk, Southern Railway Company, which held that consent remains a method of establishing personal jurisdiction independent of the minimum contacts test, first introduced by International Shoe Company. Washington. On the surface, this decision resolved ambiguities in personal jurisdiction doctrine. But, to explain to us how Mallory failed to consider the many complexities underlying consent to personal jurisdiction, Scott Dodson, a Distinguished Professor of Law at UC San Francisco, joins us to discuss his article, The Complexities of Consent to Personal Jurisdiction.
The amorphous administrative state is often oversimplified and misunderstood. Now, with the Trump Administration pushing for mass deportation and the DOGE dissecting and even disemboweling federal agencies, it is increasingly important to understand the different types of agencies, how they are run, and how agencies like the CBP, ICE, and the Bureau of Prisons create “at a massive scale the ‘field of pain and death’ that the law occupies.” From detaining federal criminal prisoners and immigrants to engaging in armed conflicts and carrying out domestic arrests, these agencies are governed by statutes, regulations, and internal guidelines that nonetheless fail to stop violence and the misuse of force.
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.
