In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of…

How do people, organizations, and even movements bounce back from losses and setbacks? For organized labor, the disappointments are routinely legal: an overturned precedent, a loss of coverage, or even the accelerated degradation of the National Labor Relations Act regime itself. In aggregate, these and other law-based defeats pose a serious, even existential, threat…

Decades ago, it was difficult to imagine a reality in which artificial intelligence (AI) could penetrate every corner of our lives to monitor our innermost selves for commercial interests. Within just a few decades, the private sector has seen a wild proliferation of AI systems, many of which are more powerful and penetrating than anticipated…

Millions of Americans live in food deserts, a term that describes urban neighborhoods and rural regions where residents do not have access to healthy, affordable food. Food deserts are neither natural nor inevitable. Many food deserts result from the deliberate choices of supermarkets to maximize their profits by shifting resources to suburban consumers while affirmatively blocking other grocery…

Does litigation addressing catastrophes caused by climate change make society more or less fragile? As sea-level rise and wildfires threaten to cause enormous financial and social costs, related litigation presents unmatched concerns of over- and under-deterrence. In this Note, I examine litigation addressing two of climate change’s greatest impacts: sea-level rise and wildfires…

Waste is built into the American way of life. Yet the problem of what to do with waste remains largely unresolved. Indeed, our entire way of life hinges on overburdening with waste some communities, so that other communities may be underburdened, and thereby enjoy the benefits of clean air, water, and land. Perhaps the most…

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…

American democracy faces profound challenges in our era. Some of these challenges stem from features in the institutional design of democracy that are hard-wired into the Constitution; those challenges, unique to the United States, are the ones Steven Levitsky focused on in his provocative lecture. But other major challenges confronting American democracy are common to…

Many, many thanks to the Brennan Center and to Berkeley Law for the invitation to speak at this event. It’s really an honor to be here as part of the series, and also with this really distinguished…

This nation is not now, never has been and now never will be a white country. – James Baldwin. We live in an anxious era, particularly about the possibility of multiethnic democracy. The…

America’s frozen constitution could well be the world’s most difficult to amend. Far from being a badge of honor, the distinction of topping the global charts on constitutional rigidity is cause for alarm. Ancient and virtually impervious to amendment, the United States Constitution has withstood all modern efforts to renovate its outdated architecture on elections…

In this brief Essay, I present six comments to Steven Levitsky’s lecture. I suggest that the author (1) clarify some of the basic concepts he uses in his text, particularly the concept of democracy; (2) not confuse the problems of democracy with the problems of constitutionalism; (3) take more centrally into account the problem imposed on our democracies by the existence of profound…

Wage theft is rampant in the United States. It occurs so frequently because employers have much more power than workers. Worse, our main tool for preventing and remedying wage theft—charging government agencies with enforcing the law—has largely failed to mitigate this power differential…

Technology platforms give Silicon Valley an unprecedented ability to shape the political reality of consumers. In the 2020 California election, gig corporations like Uber, Lyft, DoorDash, and Instacart won a major political battle ensuring that their workers remained independent contractors…

This Article contributes to the emerging literature on abolition within the immigration legal system by mapping deportation abolition theory onto lawyering practice. Deportation abolitionists work to end immigrant detention, enforcement, and deportation, explicitly understanding immigrant justice as part of a larger racial justice fight…

The growing use of predictive algorithms is increasing concerns that they may discriminate, but mitigating or removing bias requires designers to be aware of protected characteristics and take them into account. If they do so, however, will those efforts be considered a form of discrimination? Put concretely, if model-builders take race…

For the past five decades, lawyers advocating on behalf of trans people have used arguments based in a binary understanding of gender to win critical legal battles in the fight for gender justice. These binary arguments clearly serve a strategic purpose: achieving major legal victories. Judges from state trial courts to the U.S. Supreme Court…

The opportunity to face one’s accuser is a fundamental right guaranteed by the Sixth Amendment’s Confrontation Clause. It is a historical right that the Romans afforded to Jesus’s disciples. And it is a right that may soon fall by the wayside in our new socially distant reality and beyond…

The Twenty-Fourth Amendment to the United States Constitution has received little attention from federal courts since its ratification. The Amendment’s language is broad and far-ranging, prohibiting conditioning the right to vote on payment of poll taxes or “any other” tax. Although the Amendment’s text, its legislative history, and early Supreme Court decisions strongly indicate that […]

The opportunity to face one’s accuser is a fundamental right guaranteed by the Sixth Amendment’s Confrontation Clause. It is a historical right that the Romans afforded to Jesus’s disciples. And it is a right that may soon fall by the wayside in our new socially distant reality and beyond…