Articles, notes, and symposia pieces published in CLR’s print volumes.

Print Edition

Volume 112, June 2024, Osagie K. Obasogie, Essay California Law Review Volume 112, June 2024, Osagie K. Obasogie, Essay California Law Review

Section 1983 and Police Use of Force: Towards a Civil Justice Framework

Conversations about police use of force have peaked in recent years as social movements and the increased visibility of police killings have led to demands for change and accountability. Unfortunately, criminal prosecutions are rare, which has led victims and their families to seek justice through civil actions. 42 U.S.C. § 1983 is the most common legal vehicle to do this and allows people who have suffered violations of their constitutional rights to seek and receive money for the harm done to them.

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Volume 112, June 2024, Fred O. Smith, Essay California Law Review Volume 112, June 2024, Fred O. Smith, Essay California Law Review

Civil Justice and Abolition: An Exercise in Dialectic

Drawing inspiration from Professor Henry Hart’s work The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, the Essay presents a fictional conversation between two federal courts professors. This dialogue explores the implications of abolitionism and “non-reformist reform” in a legal doctrinal context.

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Volume 112, June 2024, Abhery Das, Michael Esposito, Hedwig Lee, Essay California Law Review Volume 112, June 2024, Abhery Das, Michael Esposito, Hedwig Lee, Essay California Law Review

Bodily Harm: The Health Consequences of Policing in the United States

While still an emerging area of scholarship, a growing body of research suggests that police contact, in its multiple forms, is linked to adverse physical and mental health consequences. These consequences affect not only the individuals who experience direct contact with law enforcement but also their families and communities. We move beyond describing direct linkages between policing practices and immediate bodily harm to considering the ways in which multiple forms of police contact can harm families and communities.

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Volume 112, June 2024, Frank R. Cooper, Essay California Law Review Volume 112, June 2024, Frank R. Cooper, Essay California Law Review

Dicta Mines, Pretext, and Excessive Force: Toward Criminal Procedure Futurism

Scholars have recently criticized Fourth Amendment pretext doctrine for leading to more police contact with Black and Brown people and thus to racially disproportionate uses of excessive force. This Essay reveals the intersection of the Court’s pretext and excessive force doctrines by unearthing their shared roots in the 1973 United States v. Robinson search-incident-to-arrest opinion.

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Symposium, Essay, Volume 108, December 2020, Daphna Renan California Law Review Symposium, Essay, Volume 108, December 2020, Daphna Renan California Law Review

“Institutional Settlement” in a Provisional Constitutional Order

I want to press a bit on the question of what the unwritten aspects of our constitutional structure establish. Rather than a fixed legal order constructed by conventions, I want to suggest that this unwrittenness points to the provisionality of the constitutional order itself—that is, to its essentially unsettled character. This perspective raises three problems…

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Against Constitution by Convention

The Constitution emerged from a convention—a convention of the states. State popular conventions, by ratifying it, made it law. Though it was meant to “form a more perfect union,” no one could have supposed the Philadelphia Convention’s proposal was anything close to perfect. Indeed, the Constitution’s terms refute any blithe confidence in its flawlessness. Article…

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Symposium, Essay, Volume 108, December 2020, Katherine Shaw California Law Review Symposium, Essay, Volume 108, December 2020, Katherine Shaw California Law Review

Conventions in the Trenches

In this Essay, I identify several shifts in focus that might further illuminate the intersection of constitutional conventions and judicial review: first, attending to the role of internal executive-branch conventions, which are distinct in important ways from settlements between the political branches that are Issacharoff and Morrison’s primary focus; second, widening the lens to include…

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Interbranch Information Sharing: Examining the Statutory Opinion Transmission Project

In 2007, the Administrative Office of the U.S. Courts revitalized a little-known program to “foster communication” between the judicial and legislative branches, enabling federal appellate judges to send to Congress, without further comment, opinions “that describe possible technical problems in statutes.” In our view, such a program is sensible: The Judiciary is uniquely situated to…

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Symposium, Essay, Volume 108, June 2020, Jon O. Newman California Law Review Symposium, Essay, Volume 108, June 2020, Jon O. Newman California Law Review

The Current Challenge of Federal Court Reform

Keynoter? What a daunting assignment before this gathering! I’m reminded of President John F. Kennedy’s remark at a dinner honoring Nobel Prize winners: “This is the most extraordinary collection of talent . . . that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.” As I survey this…

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Symposium, Essay, Volume 108, June 2020, Jeremy Fogel California Law Review Symposium, Essay, Volume 108, June 2020, Jeremy Fogel California Law Review

Foreword: Symposium on Charting a Path for Federal Judiciary Reform

A principal mission of the Berkeley Judicial Institute (BJI), which I am privileged to serve as Executive Director, is to “fill a long-standing need to establish an effective bridge between the legal academy and the judiciary.” This mission statement reflects a common perception among both legal scholars and judges that the two institutions often talk…

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Symposium, Essay, Volume 107, December 2019, David Alan Sklansky California Law Review Symposium, Essay, Volume 107, December 2019, David Alan Sklansky California Law Review

Populism, Pluralism, and Criminal Justice

The story that James Forman Jr. tells in his superb book, Locking Up Our Own, is local and nuanced. Forman explains that mass incarceration resulted from many small decisions made in many different places. Although all of those decisions were shaped by the legacies of racism and racial oppression, Forman shows that mass incarceration was…

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Symposium, Essay, Volume 107, December 2019, L. Song Richardson California Law Review Symposium, Essay, Volume 107, December 2019, L. Song Richardson California Law Review

The Fallacy of the (Racial) Solidarity Presumption

Mass incarceration in America is a story of race discrimination. On the one hand, this means our knowledge about discrimination helps explain why our criminal system looks the way it does. On the other hand, mass incarceration can also teach us something profound about the nature of discrimination itself. In Locking Up Our Own, James Forman Jr. does a masterful job excavating, analyzing…

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Symposium, Essay, Volume 107, December 2019, Paul Butler California Law Review Symposium, Essay, Volume 107, December 2019, Paul Butler California Law Review

Locking Up My Own: Reflections of a Black (Recovering) Prosecutor

I was a prosecutor in the District of Columbia during the era of Locking Up Our Own. I was a trial attorney in the U.S. Department of Justice in the early 1990s. Most of my work was in the Public Integrity Section at Main Justice, but for approximately one year I was detailed to the misdemeanor section of the U.S. Attorney’s Office for the District of Columbia. The U.S. Attorney’s Office serves as the…

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Symposium, Essay, Volume 107, December 2019, Rachel E. Barkow California Law Review Symposium, Essay, Volume 107, December 2019, Rachel E. Barkow California Law Review

Three Lessons for Criminal Law Reformers

James Forman, Jr.’s Locking Up Our Own is that rare nonfiction work that is a page turner even when you know the ending. That is the product of exceptional writing, meticulous historical research, and the deep empathy of the author that gives the book its voice throughout. That is why it was both a worthy recipient the Pulitzer Prize and a feature on The Daily Show with Trevor Noah. It is as…

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Symposium, Essay, Volume 107, December 2019, James Forman California Law Review Symposium, Essay, Volume 107, December 2019, James Forman California Law Review

Confronting Mass Incarceration: Lecture from the 2018–2019 Jorde Symposium

Thank you. It’s a real honor to be at any event that is sponsored by the Brennan Center. I read your tweets, your emails, your policy reports, and your articles in the Atlantic. You are a vital institution. Thank you for doing the work that you are doing. I had a chance to spend some time with Tom Jorde earlier this afternoon, and Tom, I want to tell you how much I appreciate you putting your name…

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Essay, Volume 107, December 2019, Daniel Farbman California Law Review Essay, Volume 107, December 2019, Daniel Farbman California Law Review

Resistance Lawyering

This is the story of a group of abolitionist lawyers who devoted themselves to working within a legal system that they considered to be fundamentally unjust and illegitimate. These “resistance lawyers” used the limited and unfriendly procedural tools of the hated Fugitive Slave Law of 1850 to frustrate, oppose, and, if possible, dismantle the operation…

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Symposium, Essay, Volume 107, June 2019, Stephen I. Vladeck California Law Review Symposium, Essay, Volume 107, June 2019, Stephen I. Vladeck California Law Review

Constitutional Remedies in Federalism’s Forgotten Shadow

“[F]ollowing our decision in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), federal courts are generally no longer permitted to promulgate new federal common law causes of action . . . .” “When a party seeks to assert an implied cause of action under the Constitution itself . . . separation-of-powers principles are or should be central to the analysis. The…

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Speaking with a Different Voice: Why the Military Trial of Civilians and the Enemy is Constitutional

The Constitution declares that the “Privilege of the Writ of Habeas Corpus” can be suspended by the federal government only “in Cases of Rebellion or Invasion [when] the public Safety may require it.” Because some regard this Habeas Clause as the Constitution’s only “emergency” provision, the Clause looms large in treatments of the Constitution’s…

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