Print Edition
Articles, notes, and symposia pieces published in CLRโs print volumes.
Across the post-Dobbs United States, reports of pregnant people battling infections as severe as sepsis, experiencing hemorrhaging, and suffering from other pregnancy complications in hospital emergency rooms are flooding the news. Because of state abortion bansโ lack of clarity about medical exceptions and the overall chilling effect on abortion care, many patients are being denied the emergency care that they need or are being forced to wait until they are knocking on deathโs door before medical staff can treat them. Some patients are being airlifted to out-of-state hospitals for treatment elsewhere, and many who are forced to wait until their health deteriorates are taking matters into their own hands and choosing to travel out-of-stateโoften at great health riskโif they have the means.
Across the United States, immigrants held in for-profit detention centers participate, willingly or through degrees of coercion, in a work program that pays one dollar per day. For decades, the courts affirmed the legality of this practice and swiftly dismissed claims that participants in the program qualified for worker protections. But in the past decade, litigators, advocates, and academics have partnered with detained workers to successfully challenge the legality of these labor schemes, most recently scoring a unanimous victory at the Supreme Court.
For victims of abuse, safety means hiding. Not just hiding themselves, but also their contact details, their address, their workplace, their roommates, and any other information that could enable their abuser to target them. Yet today, no number of name changes and relocations can prevent data brokers from sharing a victimโs personal information online. Thanks to brokers, abusers can find what they need with a single search, a few clicks, and a few dollars. For many victims, then, the best hope for safety lies in obscurityโthat is, making themselves and their information harder to find. This Article exposes privacy lawโs complicity in this phenomenon of โbrokered abuse.โ Today, victims seeking obscurity can ask data brokers to remove their online information.
This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between diplomacy and commerce and used this confluence to justify unilateral economic actions by a โtrader in chiefโ that circumvent the Constitutionโs allocation of power.
This Article provides the first comprehensive account of the reconstruction of energy tax law that has occurred in the 2020s. In the past, federal energy policy offered carrots and sticks aimed selectively at specific sources of emissions (e.g., power plants) and specific green alternatives (e.g., solar and wind), even as academics urged the use of universal sticks like a carbon tax. But Congress has now charted a new path: performance-based carrots, or tax credits for any zero-emission energy technology (subject to certain politically driven exclusions). The only way to implement universal, performance-based carrots is to estimate the carbon intensity of every subsidy applicant. This is the task of carbon accounting. The Article makes two main arguments about the emergence of carbon accounting inside tax law.
To comply with the colorblind impulses of American antidiscrimination law, computer programmers tend to exclude race as a data input when constructing a machine learning algorithm. Yet scholars and advocates consistently argue that even these formally race-blind algorithms can racially discriminate by relying on so-called โproxies for race,โ or variables that have a strong correlation with race, such as zip code, income, or prior criminal arrest. While a programmer wishing to respond to this argument might attempt to remove both race and all racial proxies from input data, their task is complicated by a key dilemma: The definition of a racial proxy is far from obvious. This Article examines the myriad definitions of a racial proxy proffered by courts, scholars, and state and private actors to demonstrate how race and racial assumptions become embedded in the machine learning algorithms that increasingly structure human life.
CLR Online
The web edition of the California Law Review.
Brokering Safety identifies a failure of privacy law: the tendency to allocate responsibility to individuals through opt-out and deletion rights, even as informational harm is generated by distributed systems capable of reconstructing, predicting, and targeting individuals over time. Privacy self-management fails, the Article shows, because the law has assigned them a task that the architecture of the data broker ecosystem made impossible. By grounding its critique in system design, Brokering Safety reframes the problem at the right level of analysis and points toward a corresponding solution: redistribution of responsibility from individuals to the institutional actors who generate exposure at scale. This comment builds on a mechanism in the Brokering Safety analysis. That mechanism is inference: the capacity of distributed systems to generate reliable, actionable knowledge about individuals by aggregating and recombining incomplete, loosely related data. This mechanism strengthens the centralized obscurity proposal by clarifying that the inadequacy of existing regimes reflects a category error: regulating transactions in data rather than the production of knowledge.
โCompanies in the networked information economy collect personal data to provide their services. Businesses are also always keen to develop other ways to monetize this consumer information. A handful of the largest leverage their platforms to serve content or ads on behalf of paying advertisers. After all, many companies are willing to pay handsomely for targeted access to potential buyers across devices. Others sell the data to third parties who find further commercial uses for it. Current legal doctrine allows this last categoryโdata brokersโto sell or license personal data although they are not the ones to collect it from consumers. Meanwhile, most people do not know or understand these background deals and practices, even when they consent to them. Most consumers feel that they have no choice but to click yes and accept the terms of service. To put it starkly: the prevailing regulatory approach in the United States has effectively normalized data exposure.
โTragically, U.S. privacy law has neglected to address a significant dimension of privacy. While lawmakers and judges have routinely recognized intrusions into our secluded spaces and breaches of our confidentiality and secrecy, they have largely failed to protect our most common yet also our most underappreciated form of privacy: the practical obscurity that allows us to live freely and with dignity. Obscurity, which is the state of protection that arises when personal information is difficult for some people to obtain or correctly interpret, serves several vital interests: (1) it safeguards our ability to express ourselves without fear that everything we say could be used against us; (2) it enables us to participate in key democratic processes like protesting without the government recording our opposition in a database; and (3) it allows us to form intimate relationships where we selectively share what is on our minds and in our hearts. Ultimately, obscurity provides the โbreathing roomโ we need pursue self-development or establish healthy boundaries with others.
In January 2026, right after overthrowing the President of Venezuela but just before launching a war with Iran, the Trump Administration ramped up its efforts to annex Greenland. During this period, President Trumpโs rhetoric surrounding the Danish territory reached a fever pitch, with erratic threats of both a military invasion of Greenland and the imposition of tariffs on European goods. On January 17, in response to a near-unanimous opposition by European countries to the proposed annexation, President Trump threatened several European states with blanket 10 percent tariffs starting on February 1, 2026, which would quickly increase to 25 percent on June 1, 2026. He posted on Truth Social that these increased tariffs would be effective until the United States reached a deal for the โComplete and Total purchase of Greenland.โ
To the public, Learning Resources v. Trump was a fierce condemnation by the Roberts Court of President Donald Trumpโs brash assertions of constitutional power. The Supreme Court flatly rejected the claim that the International Emergency Economic Powers Act (IEEPA) provision empowering the President to โregulate . . . importationโ in the face of emergency unlocked tariff powers. The New York Times pronounced the decision as a โDeclaration of Independenceโ by the high court. Slate praised the thirteen pages of the Chiefโs opinion backed by a majority as โa withering rebuke . . . [a] crisp, confident opinion.โ But if you look deeperโfor instance, at the remaining 157 pagesโit becomes clear that the Courtโs conservative majority experienced a catastrophic meltdown.
In January 2026, Anthropic published something unprecedented: a 79-page โconstitutionโ for its AI model Claude. The document is remarkable. It is not a terms of service agreement. It is not a list of prohibited outputs. It is, as the company describes it, โa detailed description of Anthropicโs intentions for Claudeโs values and behavior.โ This constitution stands as a foundational text meant to shape how an artificial intelligence understands itself, its obligations, and its place in the world. Anthropic is not merely programming behaviors. It is, at least rhetorically, cultivating something like AI integrity. Reading the document, one encounters genuine philosophical engagement rather than boilerplate risk mitigation. History offers little reason to believe that corporate ethics survive contact with quarterly earnings reports.
Symposia
Articles accompanying CLRโs conferences. Published in the print edition.
The concern raised by David Straussโs 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 Courtโs reactionary jurisprudence to a breakdown of elite consensus. He observes that lawyers and judges disagree about the proper โvictimsโ of our political process: Are they Black, Brown, and LGBTQ+ people or, instead, Whites, Christians, and gun owners? Under such elite โpolarization,โ 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. But critical to such defenses is the unstated conjecture that elites are more enlightened than popular majorities.
In Dobbs v. Jackson Womenโs Health Organization and Obergefell v. Hodges, the Justices who attack substantive due process law equate it with Lochner. Today, crying โLochnerโ has so much force that it is often unclear what the objection itself entails. โLochnerโ warns federal judges to defer to a legislatureโs judgments in enacting ordinary social and economic legislation. But the modern substantive due process cases do not concern such legislation. In this Essay, we supply an answer to the Lochner objection by demonstrating how judicial review of substantive due process claims can be democracy-promoting.
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. However, this Essay contends that such claims wildly exaggerate the actual significance of judicial opinions.
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. But this account is not quite right, and it is incorrect in a way that suggests a deep problem with judicial review today.
Department of State v. Muรฑoz was a critically important successor to Dobbs v. Jackson Womenโs Health Organization. In Muรฑoz, 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.
Algorithms shape our modern world, determining everything from which ads we might see on Instagram to who is afforded access to credit. Yet if you're not a machine learning engineer, it's hard to discern what decisions go into the development of these algorithms. That question -- what input decisions go into the creation of machine learning algorithms -- motivated Professor Fanna Gamal's latest article, The Algorithmic Racial Proxy. Professor Gamal, Assistant Professor of Law at UCLA School of Law, noticed that developers often exclude race and racial proxy variables as an input when creating machine learning algorithms.
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 โat a massive scale the โfield of pain and deathโ that the law occupies.โ 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 employersโ potential tax violations. What can this state of affairs teach us about agency overreach? And what alternate paths could better align the IRSโs 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. Whatโs 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 OโConnor 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 โhidden factfindingโ? 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.
